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NAVAL WAR COLLEGE 



INTERNATIONAL LAW 
DECISIONS AND 



NOTES 



1923 




WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1925 



ADDITIONAL COPIES 

OF THIS PUBLICATION MAY BE PROCURED FROM 

THE SUPERINTENDENT OF DOCUMENTS 

GOVERNMENT PRINTING OFFICE 

WASHINGTON, D. C. 

AT 

75 CENTS PER COPY 



PREFACE 

The discussions upon questions of international law before the 
class of 1923 at the Naval War College, Newport, R. I., were, as 
in recent years, conducted by George Grafton Wilson, LL. D., 
professor of international law at Harvard University. 

The problems submitted to the class and their subsequent discus- 
sions required the interpretation of certain treaties about which 
there is a difference of opinion and involved points of law upon 
which there have been as yet no judicial decisions. For this reason 
it is considered inexpedient to publish this matter at the present 
time. 

The 1923 volume of International Law Documents is a compila- 
tion, made by Professor Wilson, of decisions of various prize courts 
that are considered to be of special interest and value to officers of 
the naval service. The subject matter has been considered at the 
war college; but, as is evident from the text, the contents consist of 
recent tribunal decisions only and are therefore not directly repre- 
sentative of the work of the war college. 

C. S. Williams, 
Rear Admiral, U. S. Navy, 
President, Naval War Colleae 

January 1, 1925. 

in 



TABLE OF CONTENTS 



Pag« 

Preliminary note VII 

Vessels: Ownership, charter and service 1 

Haelen, the 1 

Waubesa, the 7 

Conner-Esperanza, the 14 

Mudros, the 22 

Sao Vincente, the 23 

Gul Djemal, the 28 

Western Maid, Liberty, Carolinian, the 32 

Charlotte, the 49 

Porto Alexandre, the 51 

Tervaete, the 59 

Island, the 75 

Draupner, the 80 

Esperanza, the 86 

Silvan Arrow, the 90 

Armed vessels 103 

Submarine E14, the 103 

Espiegle, and other vessels, the 108 

Submarine E12, the 113 

Search in port 121 

Bernisse, and Elve, the 121 

Enemy vessels and cargo 131 

Blonde, and others, the 131 

Zuiderzee and the Gouwzee, the 156 

Japanese prize cases 161 

Zuimo, the 161 

Eorus, the 169 

Christian Boles, the 171 

Mixed Claims Commission — United States and Germany 173 

Lusitania cases 173 

Naval and military works or material 189 

Index 217 

v 



INTERNATIONAL LAW: DECISIONS AND NOTES 



PRELIMINARY NOTE 

In International Law Decisions and Notes published by the Naval 
War College in 1922 attention was called to the departure during 
the World War from precedent, owing to the changed character of 
warfare. Nearly all the cases reprinted in the volume of 1922 were 
decided during the period of actual hostilities, and showed the 
influence of the exceptional conditions under which the war was 
conducted. It was also stated that other decisions would receive 
attention at the Naval War College. 

Many of the decisions printed in this volume have been rendered 
since the World War, and show a tendency to conform more closely 
to established precedents, though there are frequent departures from 
these precedents. The points of view taken in these decisions vary 
somewhat according to the nationality of the courts, even when the 
courts are purposing to interpret the same law. This is somewhat 
fully shown in the cases showing the status of vessels as influenced by 
ownership, charter, and service. This matter has in recent years 
become of growing importance, and practice has been far from 
uniform. (See pp. 101.) 

In cases in which decisions were rendered in a foreign language, 
the language of the court is official, and the translations here given are 
for convenience of reference, but as the systems of jurisprudence 
differ it is not always possible to give exact translations. Apprecia- 
tion is due to those who have aided in making these translations. 

With the development of international law the decisions of all 
courts will have value as precedents, and with the growth of the 
practice of referring disputes to international tribunals common 
standards will be recognized. 

This volume includes cases from different national courts and 
from mixed commissions. 

The cases are from the official reports unless otherwise indicated 
and are usually arranged in chronological order under each topic. 

VII 



TESSELS: OWNERSHIP, CHARTER, AND SERVICE a 



Safe conduct. 



THE "HAELEN" 

June 28, 1918 
(2 Entscheidungen des Oberprisengerichts in Berlin, 177) 

In the prize matter concerning the Belgian steamer 
Haelen, home port Antwerp, the imperial superior prize 
court in Berlin, in its session of June 28, 1918, decided: 

The appeal against the judgment of the imperial prize 
court in Kiel of March 13, 1918, is dismissed with costs. 

Keasons: The Belgian steamer Haelen, en route from statement of 

o ' the facts. 

Montreal to Kotterdam, was brought to on November 3, 
1917, by a German submarine within the German barred 
zone in the North Sea, and brought in to Swinemunde 
for closer examination. Seizure in prize ensued on No- 
vember 26, 1917, through authorized agents of the 
admiralty staff. The vessel had a cargo of wheat for the 
Commission for Kelief in Belgium, consigned to Rotter- 
dam, and was possessed of a safe conduct pass, from the 
Swiss consul general in Montreal, which assures safe 
passage to vessels sailing to the account of the Commis- 
sion for Relief in Belgium. A condition that the vessels 
shall take a course outside of the barred zones is adjoined 
to the privilege; otherwise they lose the right to claim 
special treatment. 

° At the meeting of the International Conference on Maritime Law in 1922 the leading 
maritime countries of the world were represented. The matter of the status of state- 
owned and state-charted vessels was considered, and the following resolution was unani- 
mously adopted: 

1. Sovereign states, in regard to ships owned or operated by them and cargo owned by 
•them, and cargo and passengers carried in such ships, ought to accept all liabilities to the 
same extent as a private owner. 

2. Except in the case of the ships and cargoes mentioned in paragraph 3, such liabilities 
should be enforceable by the tribunals having jurisdiction over and by the procedure 
applicable to a privately owned ship or cargo or the owner thereof. 

3. In the case of — 
(a) Ships of war; (6) other vessels owned or operated by the Sovereign State and em- 

"ployed only in governmental noncommercial work; (c) state-owned cargo carried only 
-for the purpose of governmental noncommercial work in ships owned or operated by 
the soverign state. 

Such liabilities should be enforceable only by the like tribunals but only of the state 
by which the ships is owned or operated, and should be enforceable by action in per 
sonam against such state, and in addition, by any other form of procedure permitted by 
the law of such state. 

33474— 25t 2 



2 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

Claim was raised by the owners of the Haelen for the 
release of the ship and indemnity, also for loss of freight; 
and by the Commission for Relief in Belgium for the re- 
lease of the cargo or for compensation. The claim was 
based on the ground that the vessel, being intrusted with 
a philanthropic mission, according to article 6c of the 
Prize Code, was not subject to capture. 
K?ef d pme en court! By the judgment of the prize court at Kiel of March 
13, 1918, the claims were dismissed, and the condemna- 
tion of the vessel and its cargo decreed. The prize court 
adopted the opinion that the premises of article 6c of 
the Prize Code did apply to the vessel, but that the 
privilege arising therefrom had been forfeited because 
the vessel, in addition to its philanthropic mission, had 
pursued other purposes in the war area for the benefit 
of our enemy, and had for this reason traversed the 
barred zone. 

Against this judgment, both claimants have appealed. 
Whereas the owners have maintained their claims, as 
made in the first instance, the representative of the sec- 
ond claimant explained in the oral proceedings before 
the court of appeal that the major portion of the cargo 
of wheat of the Commission for Belief in Belgium had 
been refunded in kind. The claim was therefore only 
to be retained on behalf of the remainder of the cargo. 
Reimbursement is demanded for the value of the wheat 
in Canada, with the addition of freight and expenses to 
Europe. The claimants assert that it was only the bad 
weather which necessitated the captain's departure 
from the prescribed course. In the zone traversed, there 
had been neither occasion for any investigation in the 
interest of the enemy, nor intention on the part of the 
captain. In the court of second instance, a deposition, 
made under oath by the captain of the Haelen before the 
district court in Rotterdam, is presented, in which the 
allegations made the basis of the appeal are corrobo- 
rated. 

The imperial commissioner before the superior court 
has moved that the appeals may be dismissed. 

In the decision from which appeal is made, the judge 
of first instance goes upon the assumption that the 
steamer Haelen, as incontestably enemy-owned, was sub- 
ject to capture unless the protection of article 6c of the 
Prize Code is to be accorded it. The latter would follow 
of necessity, if the vessel, in the prosecution of the voy- 



THE HAELEN 3 

age in question, was charged with a philanthropic mission. m ^S nthropic 
The prize court assents to this proposition, provided that 
the sole purpose of the Haelen was to convey a cargo of 
wheat to Rotterdam for the Commssion for Relief in 
Belgium, which would inure to the benefit of the civil 
population of Belgian and French occupied territory. It 
further assumes that by the mere fact of having traversed 
the war zone, the ship did not forfeit the protection of war zone, 
article 6c of the Prize Code, because the proclamation 
of a part of the North Sea as a blockaded area made 
no change in the prize provisions, and, specifically, 
created no new grounds for seizure in prize. The vessel 
only forfeited the protection of article 6c of the Prize 
Code if in addition to its declared philanthropic mission, 
it was pursuing other purposes in traversing the barred 
zone, especially if it intended to collect certain informa- 
tion for the enemy. That such was the intention of the 
captain of the Haelen in the present case, the judge of 
first instance regards as proved on the basis of the ascer- 
tained facts, without, however, specifying what definite 
belligerent purpose the vessel was pursuing by its voy- 
age through the war zone. His main argument is that 
it is not evident what other reason could have induced 
the captain to expose his vessel to the great danger in- 
volved in traversing the barred zone, as his statement 
that he was forced to do so on account of heavy weather 
assumed, in view of the ascertained condition of the 
weather, the guise of a pure evasion; just as his behavior 
after the capture revealed his conscious guilt. 

The imperial superior prize court can not join in these 
considerations. It may be conceded to the judge of . 
first instance that if the captain of the Haelen intended 
to assist the enemy's conduct of the war, his vessel would 
have lost the protection of article 6c of the Prize Code 
on this ground alone. But sufficient basis for such a 
conclusion is not given. 

The statements of the captain are certainly not cal- Deviation from 

course 

culated to justify the voyage of the vessel. He may in 
truth have had sufficient reason for not making his way 
north of the Faroe Islands, as had been prescribed, for 
otherwise he would have exposed his vessel to the full 
lateral force of the northwesterly storm, which mani- 
festly prevailed at the time he approached the Faroe 
Islands. The vessel was not very seaworthy in heavy 
weather, and was listing badly besides. But the situation 



4 vessels: ownership, charter, and service 

changed when he reached the southern point of the Faroe 
Islands. With the diminishing wind it was now possible 
to steer to the northeast under the protection afforded by 
the islands to the northwest, and thus even now avoid the 
barred zone. For, as the map with the records shows, 
there is between the southern point of the Faroe Islands 
and the edge of the barred area an adequate passage 
open to traffic. In neglecting to take this route, and even 
on the following day making no attempt to get out of the 
barred zone by a northerly course, but, on the contrary, 
continuing his course from the southern tip of the Faroe 
Islands in an easterly and southeasterly direction, the 
captain was no longer compelled by necessity so to do, 
but was acting according to his voluntary decision. The 
motive behind this, however, does not need to be regarded 
in the light of espionage, which under the circumstances 
is highly improbable. A much more proximate cause was 
the wish to shorten the voyage, and the southern tip of 
the Faroe Islands once reached, to avoid the circuitous 
route around the war zone, undesired from the beginning 
on account of the condition of the vessel. In another case, 
the captain of a relief ship met in the barred zone frankly 
gave as the reason for his course of action that he thought 
he "would get by once again." A similar thought may 
have determined the captain in this case. Looked at 
from this point of view, the subsequent conduct of the 
captain is explained. For, after he had, by his incon- 
siderate act, exposed the vessel intrusted to him to the 
suspioious con- serious risks of the war zone, contrary to his instruc- 

duct of captain. . . . ' . 

tions, it was to his own interest to destroy evidence which 
would have incriminated him even in the eyes of those 
by whom he was commissioned. Specifically, the de- 
struction of the log, containing the record of his course, 
the erasure of the course from the map, and the expres- 
sion of the wish that the vessel might strike a mine, are 
explicable on this theory. If he had really made any 
observations of value to the enemy, that he should have 
entered these im his log, as the judge of first instance 
surmises, is highly improbable. In that case, moreover, 
he would doubtless have destroyed the book, even before 
the visiting officer came on board. Then, too, the latter, 
who examined the log, noticed no entries of this sort. 

If, in accordance with what has been said, the conclu- 
sions which the judge of first instance draws from the 
behavior of the captain do not appear valid, the judg- 



HAGUE CONVENTION IX 

ment itself must be sustained on a different ground. The 
latter concerns the point of departure of the argument of 
the prize court, according to which, navigating within 
the war zone, in and of itself, had no influence upon the 
application of article 6c of the Prize Code. This view 
can not be concurred in. 

The provision of article 6c is borrowed from Conven- H J^ 6 v c J n ° ^ 
tion XI of the Hague conference. It is based upon a tlon - 
proposal of the Italian delegate, which originally con- 
tained two clauses. The first of these set up the principle 
later adopted in the convention, while the second con- 
tained a provision that the enemy state which wishes to 
set forth a vessel for the purposes alluded to must notify 
its opponent to that effect. On his part, the latter must 
grant a safe conduct, in which he must specify the con- 
ditions under which he will grant the vessel this privileged 
treatment { u indignant les conditions de V exemption") . 

The ninth session of the Comite d'examen dealt with 
the proposal. That the general principle required certain 
restrictions, such as had found expression in the proposal 
of the Italian delegate, met with no opposition. Differ- 
ence of opinion arose only as to the formal requirement 
of a safe conduct, and as to the consequences if the vessel 
had not obtained one. 

Under these circumstances, the fact that finally only 
the clause expressing the general principle was incor- 
porated into the convention does not justify the assump- 
tion that it was intended to deny the competence of the 
belligerent state to specify in detail the conditions under 
which it would concede to the vessels concerned the 
privilege assured to them in the convention. As a matter 
of fact, the unlimited application of the general principle 
would lead to untenable consequences. If, for instance, 
one were to regard it as sufficient that a ship be conveying 
food to the inhabitants of occupied territory, in which 
scarcity of food prevailed, the necessary consequences 
would be that one would have to give safe passage to 
enemy vessels as well, if they were conveying necessities 
of life to the enemy's territory under the same assump- 
tions. This proves that the principle can not have been 
conceived as broadly as might be assumed from the word- 
ing. On the contrary, the idea which was put forward 
in the deliberations, to wit, that the application of the 
general principle requires greater precision in special 
cases, must be regarded as applicable especially in the 



cisions 



VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

case of vessels which, like the one in question, are dedi- 
cated to philanthropic missions only during the war, 
occasionally, and not permanently even in time of peace. 
English de- English decisions also take this point of view. A 
German vessel engaged in taking women and children 
from the fortress of Tsingtau to Tientsin was seized as 
prize. The prize court in Hongkong held the capture 
was legal, adopting the opinion that the vessel was not 
charged with a philanthropic mission in the sense of 
article 4 of the eleventh Hague convention. If, so the 
court reasoned, such a situation was meant to be covered 
by the Hague convention, the provision in question 
would not be couched in such vague and indefinite terms. 
On the contrary, such a contingency would have been 
provided for expressly and unambiguously. Were one 
to put as broad a construction on the expression " philan- 
thropic mission" as did the plaintiff, it would lead to 
serious consequences, which could not possibly have 
been intended by the wording of the article. (Cf. case 
of the Paklat, 1 Trehern, British and Colonial Prize 
Cases, 515.) Thus, the English courts, too, adopt the 
view that an unlimited application of that general 
principle, at least as regards enemy ships, is not within 
the meaning of the provision. 

As a matter of fact, then, shipping for the relief com- 
mission takes place not only under the protection of 
article 6c of the Prize Code, but on the basis of an agree- 
ment between the German Government and the inter- 
ested neutrals, which is embodied in the safe conduct 
which every relief ship must have with it on both the 
outbound and return voyage. In this safe conduct, 
several conditions are set up, whose fulfillment is desig- 
ponditions of na ted as the premises of preferential treatment. More- 
over, it contains a clause to the effect that the safe 
conduct has reference solely to the high seas outside of 
the war zones. In view of the history of the origin of 
article 6c of the Prize Code given above, it must be 
assumed that vessels which, contrary to prescriptions of 
their safe conduct, traverse the blockaded areas, not only 
expose themselves to the danger of destruction connected 
therewith, but forfeit the benefit of article 6c of the 
Prize Code as well. 

Since, as has been shown, the captain of the Haelen 
was not compelled by any urgent necessity, tantamount 
to force majeure, to traverse the barred zone, he has 



safe passage. 



THE WAUBESA 

forfeited the right to special treatment, in accordance 
with what has been said of this claim. Therefore, his 
vessel, together with its cargo, is subject to the general 
provisions of prize law, namely, inasmuch as both were 
admittedly of enemy ownership at the time of capture, 
condemnation. Notwithstanding this, the major part 
of the cargo, as the records show, and as substantiated 
by the representative of the Commission for Belief in 
Belgium, has in the meantime been restored to the com- 
mission. Whether grounds of equity argue in favor of 
extending this concession to the rest of the cargo as well is 
a question which does not lie within the competence of 
the prize court, but is rather to be decided by the proper 
authorities of the Government. 

The judgment is therefore affirmed. The decision on 
the question of costs is conditioned by section 37 of the 
prize court rules. 



THE "WAUBESA" 

(American Maritime Cases, 1923, p. 659) 

United States of America, as owner of steamship Waubesa, libellant, 
v. City of New York, as owner of ferries Queens and Mayor 
Gaynor, respondent, and cross libel, etc. 

UNITED STATES DISTRICT COURT, SOUTHERN DIS- 
TRICT OF NEW YORK 

May 3, 1923 
Augustus N. Hand, D. J.: This case involves a col- statement of 

i • • ♦ the c£isc 

lision between the steamship Waubesa, belonging to the 
United States, and the ferryboats Queens and Mayor 
Gaynor, belonging to the city of New York. The collision 
occurred on March 17, 1919, in New York Harbor, during 
a dense fog. The Waubesa was anchored at or near the 
anchorage grounds in the upper bay to the southwest of 
Bedloes Island. 

The United States appeared specially and filed a plea 
to the jurisdiction to the effect that the Waubesa was not 
employed as a merchant vessel but was engaged in the 
European food relief service, which is alleged to be a 
purely governmental function. 

In the first libel the United States sues to recover for Libels, 
damages caused the Waubesa by the collision, and the 
city of New York files a cross libel alleging that the 
collisions were due to the negligence of those in charge 



8 vessels: ownership, charter, and service 

of the Waubesa in that the latter was anchored in the 
channel way and in that she did not ring her bell as 
required by law so as to notify vessels of her position at 
anchor. 

The second libel is filed by the Grain Corporation 
against the city of New York, and alleges that the libellant 
shipped on board the Waubesa grain in good order and 
condition to be carried from New York to European 
ports, that the Waubesa, with libellant's cargo on board, 
took up anchorage on the general anchorage grounds at 
a point to the south and east of the Statue of Liberty in 
New York Harbor, where the municipal ferries Queens 
and William J. Gaynor negligently collided with her, to 
the damage of the merchandise belonging to the Grain 
Corporation. The city of New York impleaded the 
United States as the one primarily liable, claiming the 
right to sue it under the provisions of the act of March 
9, 1920. 

In the third libel, the United States Grain Corporation,, 
organized under the laws of the State of Delaware, 
alleges that the Waubesa was a general ship engaged in 
the common carriage of merchandise by water for hire 
and was being operated under the control and direction 
of the United States Shipping Board Emergency Fleet 
Corporation; that the Grain Corporation shipped rye 
grain on the Waubesa in good order and condition to be 
carried from Philadelphia to Falmouth, England; that 
the Waubesa instead of proceeding to Falmouth, put in 
to the port of New York, having oil and water in the 
bilges, and beiag in such a condition that it was deemed 
best by those in charge of her not to proceed upon her 
voyage to Falmouth; that the cargo of grain was dis- 
charged in the port of New York not in good order and 
condition as when shipped, but seriously injured and 
damaged by contact with fuel oil and sea water, for all 
of which damages are sought. The United States is- 
made respondent under the act of March 9, 1920, in 
place of the Waubesa and the Emergency Fleet Corpora- 
tion, and the city of New York is impleaded under the 
admiralty rule on the ground that it is primarily responsi- 
ble for the alleged damage. 

[The court here reviews the evidence upon the question 
of liability for the collision and concludes that the city 
of New York is liable owing to the fact that the ferry- 
boats which struck the Waubesa were being navigated 



MUNICIPAL REGULATIONS 

in the fog at an improper speed, estimated as 7 to 8 
knots.] 

The claim that the city of New York can not limit its 
liability because its regulation for the municipal ferries 
contravened the inland rules seems to me without merit. 
Kegulation 26 reads as follows: 

"In a fog, mist, falling snow, or heavy rainstorms, Regulations. 
boats must run at half speed, or less, having careful 
regard to the existing circumstances and conditions. If 
the weather is so thick or foggy that the regular adver- 
tised schedule can not be maintained with safety to the 
ferryboats they will be run slowly and cautiously with- 
out regard to the schedule and proceed with great care 
and caution." 

Article 16 of the inland rules says: 

" Every vessel shall, in a fog, mist, falling snow, or 
heavy rainstorms, go at a moderate speed, having care- 
ful regard to the existing circumstances and conditions." 

It is contended that the words " boats must be run at 
half speed or less" suggest running at half speed under 
unsafe conditions. I see no ground for this. Each regu- 
lation prescribes a caution and a limitation of speed 
dependent on the circumstances. It might as well be 
argued that the municipal regulation imposed greater 
moderation rather than less. In my opinion the two 
regulations are equivalents. There is no proof that the 
city rule was not made in good faith. The words of the 
Supreme Court in La Bourgoyne, 210 U. S. at p. 126 are 
applicable : 

"* * * The petitioner having shown the promulga- 
tion of regulations for the conduct of its business, which 
exacted a compliance by the captains of its vessels with 
the international rules, we think the burden of proving 
that the rules were not promulgated in good faith or that 
a willful departure from their requirements was indulged 
in, and was brought home to or countenanced by the 
petitioner, was cast upon the claimants, and that the 
court properly held that that burden was not sustained 
by the evidence." 

In my opinion the municipal regulations, while dif- 
ferently phrased, were in entire accordance with the 
inland rules, and the city sustained the burden imposed 
by law of proving the absence of privity in respect to 
undue speed in a fog. 



10 



vessels: ownership, charter, and service 



The Grain Corporation contends that the ship was 
seaworthiness, unseaworthy because oil leaked from the tank and got 
into the grain and that for this reason the exceptions in 
the bill of lading and under the Harter Act are not ap- 
plicable. 

[The court here reviews the evidence upon this point, 
and concludes as follows:] 

It seems clear, therefore, that oil which had leaked 
from the tanks caused the damage in holds 1 and 2, and 
that the collision and the resulting beaching of the vessel 
contributed to this damage. 

The suit by the Grain Corporation against the United 
States is for failure to deliver the grain shipped and 
receipted for in good order in accordance with the terms 
of the bill of lading. As Goble, the master (deposition, 
p. 13) and Glen, the inspector for the United States 
Shipping Board (minutes, p. 82), both said, the trip was 
really a trial trip, though the voyage for which the cargo 
was shipped was from Philadelphia to Falmouth. The 
vessel left Philadelphia with oil in her bilges under the 
protest of her engineer, and in substance that of her 
master also (Goble deposition, p. 8). The soundings, 
however inaccurate, showed a large amount of oil in her 
bilges, and this oil, when the vessel listed as a result of 
the accident, damaged the grain in holds 1 and 2. It 
seems clear that the vessel should not have left Phila- 
delphia under such circumstances and that she was 
unseaworthy for the carriage of grain. Moreover, the 
trial trip was a deviation by an unseaworthy vessel that 
deprived the Waubesa of the benefit of the exceptions 
in the bill of lading and the provisions for exemption of 
the Harter Act. The St. Paul (1921), 277 Fed. 99; The 
Elizabeth Dantzler (1920), 263 Fed. 596. The Waubesa 
was not definitely proceeding on her voyage, but only 
going to New York and then on in case she was found fit 
and after she was satisfied that the oil could be pumped 
out and did not imperil the cargo. New York was not a 
port of refuge, but a stopping place for convenience on a 
trial trip, which, irrespective of the delay caused by the 
collision, proved to be a stopping place of long duration 
because of the condition of the vessel. I can hardly see 
a more fit application for the doctrine of deviation. 

Under such circumstances if the vessel were not 
Government owned the Grain Corporation could re- 
cover damages to her cargo and the owner of the Waubesa 



Deviation. 



Liability. 



Public busi- 
ness. 



IN PUBLIC SERVICE 11 

would have the right to recover over from the city of 
New York the total damages to the grain caused by 
water in holds 4 and 5 and one-half of damages caused 
by oil in holds 1 and 2. The city could limit in all cases. 
The United States has filed exceptions to the juris- 
diction because : 

(1) The Waubesa was not employed as a merchant 
vessel, but was engaged in public business; 

(2) The libel is for the sole benefit and account of 
private underwriters; 

(3) The policies of insurance issued by underwriters Jurisdiction. 
were issued to an agency of the United States. Hence 

the underwriters are not in a position to sue; 

(4) Any money paid by underwriters should inure 
to the benefit of the United States. 

In order to establish that the Waubesa was not em- 
ployed as a merchant vessel, but was engaged in public 
business, counsel for the United States has introduced 
documentary proof that the Grain Corporation was 
incorporated by the United States in pursuance of an 
Executive order and that by Executive orders the 
President managed the corporation and arranged for 
an increase and decrease of its capital stock; that the 
Government owned the stock of the corporation and 
that by Executive order its liquidation was provided 
for and the assets were to be paid into the Treasury of 
the United States. The Government also showed that 
the Grain Corporation in delivering the grain shipped 
on the Waubesa, which was shipped under a bill of lading 
providing for delivery to the order of the United States 
Grain Corporation, care of American Embassy, London, 
was really engaged in the relief of the starving countries 
in the East and not in mercantile business. The case of 
The Western Maid (1922), 257 U. S. 419, is relied upon. 
That vessel, like the Waubesa, was owned by the United 
States and was engaged in transporting foodstuffs for 
the relief of the civilian population of Europe. The 
Supreme Court said (Mr. Justice Holmes writing for 
the majority, p. 431) : 

"* * * It is suggested that the Western Maid was 
a merchant vessel at the time of the collision, but the 
fact that the food was to be paid for and the other details 
adverted to in argument can not disguise the obvious 
truth, that she was engaged in a public service that was 
one of the constituents of our activity in the war and its 



12 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

sequel and that had no more to do with ordinary mer- 
chandizing than if she had carried a regiment of troops." 

The same view was taken by the Supreme Court in 
the recent case of United States Grain Corporation vs. 
Phillips, 1923 A. M. C. 312, 43 Sup. Ct. Rep. 283, 67 
L. Ed. 342, Feb. 19, 1923, where a naval officer carried 
gold from Constantinople to New York on the steamship 
Laub, a destroyer in the Navy. This gold was being 
forwarded on the Laub in payment by Bulgaria for wheat 
furnished by the Grain Corporation, and the captain of 
the Laub, under a statute applicable to shipments by 
private persons or corporations, claimed a commission 
for the carriage of the gold. The court said that in sub- 
stance the gold was the property of the United States 
and while the legal title was in the Grain Corporation 
and the property of that corporation might have been 
taken to pay a judgment rendered against it, yet the 
property was clothed with such a public interest "that 
the transportation of it no more could be charged for by 
a public officer than the carrying of a gun, we must look 
not at the legal title only but at the facts beneath forms. " 

The counsel for the Grain Corporation endeavors to 
distinguish these cases on the ground that in the case at 
bar the Grain Corporation employed its own assets in 
purchasing the grain instead of carrying grain as in the 
Western Maid purchased with funds appropriated di- 
rectly by Congress; that it also insured the grain, as is 
not done in a direct government transaction, and paid 
freight to the Waubesa and received bills of lading there- 
for. The proof shows, however, that the object of the 
governmental activities was the relief of Europe and that 
any profit over cost which the Grain Corporation may 
have made was only for the purpose of paying interest on 
moneys advanced to purchase supplies to relieve the 
famine-stricken countries. I can not regard the distinc- 
tions as sufficient to take the case out of the sweeping 
decisions in The Western Maid and United States Grain 
Corporation vs. Phillips, supra. 
insurance. Advances by the underwriters to cover damage to the 

grain cargo have been made in consideration that "best 
endeavors to recover the value of the flour * * * from 
any and all persons and corporations who may be liable 
therefor" would be exercised. Such a clause can not, 
however, create a right on the part of the Grain Corpora- 



LIABILITY FOE DAMAGES 13 

tion against the United States when the latter has not by 
appropriate legislation consented to be sued. The 
Western Maid and the case of United States Grain Cor- 
poration vs. Phillips preclude any such result. Whether 
or not the warranty in the insurance policies that the 
insurance shall not inure directly or indirectly to the bene- 
fit of the carrier is sufficient to avoid the insurance in 
this case because of the fact that the United States Grain 
Corporation, as well as the United States Emergency 
Fleet Corporation, really belong by reason of stock owner- 
ship to the United States, is not a matter for determina- 
tion in this litigation. I can not see that these war- 
ranties, or the clause in the loan receipts that "the Grain 
Corporation shall use its best endeavors to recover the 
value of the flour * * * from any and all persons and 
corporations who may be liable therefor * * *" can 
affect the rights of the parties here. 

While it is true that if the Waubesa, had under the 
meaning of the decisions been a " merchant vessel" the 
damages suffered by the Grain Corporation would have 
been divided as between the city of New York and the 
United States, yet the Grain Corporation itself would 
have been entitled to recover the whole of its damages 
against either wrong doer. The Beaconsfield, (1895) 
158 U. S. 303. The English rule that owners of the 
cargo could only recover one-half of their damages from 
each party does not apply in our courts. Ralli vs. 
Societa Anonima di Navigazione (1915), 222 Fed. 944, 
at page 998. Inasmuch, however, as neither the United 
States nor the Waubesa are liable to suit, the Grain 
Corporation may prove its full damages against the 
city of New York subject to the right of the latter to 
limit. In proof of its claim against the surrendered 
vessels, or their proceeds, the claim for damages of 
the United States for injuries to the Waubesa should 
be deferred to the claim of the Grain Corporation since 
the Waubesa was unseaworthy and guilty of a deviation. 
The George W. Roby, 6th C. C. A., 1901, 111 Fed. 601. 

In the first libel an interlocutory decree is granted Deepen. 
to the United States against the city of New York with 
right of the latter to limit damages to proved value 
of surrendered vessels. The cross libel of the city of 
New York against the United States of America is 
dismissed for want of jurisdiction. 



14 vessels: ownership, charter, and service 

In the second libel brought by the United States 
Grain Corporation against the city of New York, an 
interlocutory decree is granted to the libellant, with 
the right to the city of New York to limit the amount 
of damages to proved value of the surrendered vessels. 
The petition impleading the United States of America 
is dismissed for want of jurisdiction. There are two 
claimants to the same fund in the foregoing libels, 
namely, the United States and the United States Grain 
Corporation, and the causes have all been tried together. 
For the reasons hereinbefore stated the claim for damages 
of the United States for injuries to the Waubesa should 
be deferred to the claim of the Grain Corporation since 
the Waubesa was unseaworthy and guilty of a deviation. 

The third libel brought by the United States Grain 
Corporation against the United States of America is 
dismissed for want of jurisdiction and the petition by 
the United States of America impleading the city of 
New York is dismissed. 

Settle decrees on notice. 



THE "CONNER"; THE "ESPERANZA" 

(American Maritime Cases, 1924, p. 1170) 

New York & Cuba Mail Steamship Co., libellant, vs. United 
States of America, respondent, and cross libel 

UNITED STATES DISTRICT COURT, SOUTHERN 
DISTRICT OF NEW YORK 

July 29, 1924 

Winslow, D. J. : These are cross suits in admiralty — 
one brought by the New York & Cuba Mail Steamship 
Co., owner of S. S. Esperanza, against the United States, 
owner of the torpedo-boat destroyer Conner, and by the 
United States against the S. S. Esperanza, to recover 
damages arising from a collision between the Esperanza 
and the Conner on February 15, 1918, off Barnegat. 

By act of Congress approved February 28, 1923, 
jurisdiction was conferred upon this court to hear and 
determine the suit and to enter a judgment or decree 
"upon the same principles and measures of liability as 
in like causes in admiralty between private parties. " 
(67th Cong., Private Act No. 192.) 

The facts material to the determination of the issues, 
not disputed, are as follows: 



THE CONNER AND THE ESPERANZA 15 

The Esperanza, with passengers and cargo, left Brook- ca f e acts of the 
lyn at 3.05 p. m., February 14, 1918, bound for Cuban 
and Mexican ports. At 7.55 she passed Scotland Light, 
her course being S. by W. H W. This course was 
maintained until off Sea Girt, when it was changed to 
S. by W. x /i W., and later was changed to S. by W. 
At 10.25 p. m., the weather having thickened, the engines 
were put half speed and fog signals were sounded at 
regular intervals. At 10.30 fog shut in and speed was 
reduced to slow. About 10.40 the speed was reduced 
to dead slow — 3 to 4 knots, u just steerage way." The 
Esperanza 1 s fog whistles, in the meantime, were blown 
at regular intervals. At 12.08 a. m., February 15, 
ship's time, while running at dead slow on a course 
S. by W., the fog signal of another vessel was heard 
about three points on the starboard bow of Esperanza. 
The master and second officer were on the bridge and a 
lookout stationed on the forecastle head. The fog 
signal was heard and reported by the lookout, whereupon 
the Esperanza blew a regular blast of her fog whistle. 
The captain then took the whistle cord and blew three 
fog whistles at approximately three-quarter minute 
intervals. No whistle was heard from the Conner 
during this time. Then a loud whistle was heard from 
the Conner and, at the same time, she broke out of the 
fog, apparently coming at high speed and almost im- 
mediately struck the Esperanza a glancing blow on her 
starboard side, thence disappearing in the fog under 
the Esperanza 's stern. An inspection disclosed that 
the Esperanza was able to make port without assistance 
and she put about, heading toward New York, where 
she arrived February 15, at 12.32 p. m. 

The Conner, a new torpedo-boat destroyer, left Phila- 
delphia February 14, 1918, for Newport, R. I., under 
orders to make test runs of 12.16, and 20 knots, using 
the cruising combination of her turbines. Ten minutes 
prior to the termination of the 12-knot test, at 9.30 p. m., 
February 14, a dense fog shut in, which continued until 
the collision. The 12-knot test was terminated at 9.40 
p. m., when the engines were shifted to high-pressure 
combination, but no change was made in the Conner's 
speed of 12 knots. 

The Conner passed Five Fathom Bank Lightship at 
7.20 p. m. about 100 yards on her port beam. From 
there her course was made at 34° true. Her course and 



16 VESSEDS: OWNERSHIP, CHARTER, AND SERVICE 

speed of 12 knots were held until the collision occurred. 
The Conner's commander testified that at 12.12 a. m. 
February 15: 

co T nnS? on com- "* heard a sound * * * This sound attracted my 
mander. attention on the ground that it might be a fog signal. I 

inquired and found no one else on the bridge had heard 
anything which sounded like a fog signal. I gave im- 
mediate orders to exercise unusual diligence in listening 
and to sound our own signal, so that if this sound had 
been a fog signal we would have given an immediate 
response to the other vessel. Our signal had just been 
sounded when, through the fog, came a loud, piercing 
fog signal of a steam vessel under way on our port bow. 
I immediately called out 'Stop the engines' and, being the 
nearest person to the engine-room telegraph shoved them 
myself to the stop position and got the stop signal back 
from the engine room." 

The commander further says that — 

"The only thing which was seen at first was a string 
of white lights, nothing to indicate the heading of a 
vessel or her character." 

He thereupon ordered "hard right" to the steersman 
and — 

"just after that a green light appeared close under the 
bow and the Conner struck a glancing blow against some 
large vessel." 

It may be noticed that the Conner's engines were or- 
dered stopped and her helm put "hard right" before 
either of the Esperanza' s side lights came into view. The 
engines were not reversed nor her headway checked and 
she continued on, striking the Esperanza on the starboard 
side, glancing off and passing under the Esperanza's stern 
and disappearing in the fog. 

The litigants do not agree as to the place of the colli- 
sion. The commander of the Conner fixes it at about 12 
miles from Barnegat buoy. The Esperanza fixes it at 3 
miles southeast of Barnegat buoy. 

Owing to the fact that no suit could be brought, due 
to lack of the court's jurisdiction, until after the act of 
Congress some iive years after the collision, the deposi- 
tions could not be taken earlier. Owing to the lapse of 
time, only two depositions of Esperanza's witnesses were 
produced — that of the master of the Esperanza and of 
the second officer, both of whom were in extremely 
feeble health. There was also received in evidence, how- 



INTERNATIONAL RULES 17 

ever, the record of the proceedings of the investigation 
on board U. S. S. Arkansas, February 16, 1918, made 
pursuant to order of the commander of the Battleship 
Force 2, United States Atlantic Fleet. There is also in 
evidence the record of the investigation held by the 
Steamboat Inspection Service at the office of the local 
inspectors in New York on February 28, 1918. 

In determining the question of responsibility, the con- 
duct of each vessel will be considered separately. The 
International Rules adopted for the purpose of prevent- 
ing collisions provide that the regulations to that end 
" shall be followed by all public and private vessels of 
the United States upon the high seas." 

"Art. 16. Every vessel shall in a fog, mist, falling international 
snow, or heavy rainstorm, go at a moderate speed, hav- 
ing careful regard for the existing circumstances and 
conditions." 

That these rules govern the navigation of a war ves- 
sel in time of war has been distinctly held by this court. 
Watts vs. U. S., 123 Fed. 105. This case arose out of 
a collision between the U. S. S. Columbia and the Foscolia 
during the Spanish-American War. It was contended 
that the Columbia was proceeding at an immoderate 
speed in fog, the speed, however, being 6 knots. The 
Government contended that the failure of a war vessel 
to obey the navigation rules during war time was ex- 
cusable. The court refused to agree with this contention. 
In the act which authorized the present suit it is pro- 
vided, among other things, that the issues shall be de- 
termined "upon the same principles and measures of 
liability as in the cases in admiralty between private 
parties." 

The Conner was under a duty to observe the rule as to 
moderate speed in like manner as a privately operated 
ship in the admittedly dense fog. 

In a recent case, in which Judge Ward wrote the opin- 
ion, not yet reported (N. Y. & Porto Rico S. S. Co. 
vs. Director General, June 3, 1924) the definition of a 
dense fog is given as the obscuration of objects 1,000 
feet away or less. 

Some evidence in the instant case is that the fog was 
so thick that the lookout on the Conner's bow could not 
be seen from her bridge 50 feet away. Commander 
Howe, a most excellent witness, described the visibility 
as "between 50 and 100 yards." 



18 vessels: ownership, charter, and service 

speed*." derate What is a moderate speed, is of course a relative term, 
but it has been the subject of frequent comment and de- 
termination. 

The Colorado, 91 U. S. 692, 702; The Nacoochee, 137 
U. S. 330, 339. 

Mr. Justice Brown, in The Umbria, 160 U. S. 404, 
stated the rule as follows: 

" The general consensus of opinion in this country is to 
the effect that a steamer is bound to use only such pre- 
cautions as will enable her to stop in time to avoid a 
collision, after the approaching vessel comes in sight, pro- 
vided such approaching vessel is herself going at the 
moderate speed required by law." 

And, again, in The Chattahoochee, 173 U. S. 540, Mr. 
Justice Brown again referred to the rule, using the fol- 
lowing language : 

"No absolute rule can be extracted from these cases. 
So much depends upon the density of fog and the chance 
of meeting other vessels in the neighborhood, that it is 
impossible to say what ought to be considered moderate 
speed under all circumstances. It has been said by this 
court in respect to steamers that they are bound to 
reduce their speed to such a rate as will enable them to 
stop in time to avoid a collision after an approaching 
vessel comes in sight, provided such approaching vessel 
is herself going at the moderate speed required by law" 
(p. 548). 

Ordinarily \ it would hardly be debatable that a speed 
of 12 knots in a fog of the density which prevailed at the 
time of the collision in the instant case would be wholly 
unwarranted and immoderate. Indeed, many times this 
court has held that a very much less speed than 12 knots 
is an immoderate speed. 

The Columbia (supra); The H. F. Dimoclc, 77 Fed. 226; 
The Hilton, 213 Fed. 997; The Rosaleen, 214 Fed. 252. 

The Government contends, however, that the Conner 
was justified in proceeding at 12 knots because of her 
tremendous backing power, which would enable her to 
stop in a shorter distance than ordinary vessels. Her 
maximum speed was upwards of 30 knots. It is quite 
apparent that, whatever the backing power of the 
Conner may have been, it was of no avail here. That 
speed in this dense fog brought her into collision in a few 
seconds, before her engine power could even be brought 
into play. The distance that the ships were visible to 



MODERATE SPEED 19 

each other in the fog and the speed at which they were 
approaching and traversing the space between them are 
the real factors in the present problem. How futile is 
engine power in stopping or reversing if the colliding 
vessels are upon each other in a few seconds of time 
before the power can be brought into play! 

In The Manchioneal, 243 Fed. 801, the Circuit Court 
said: 

" * * * §p eec [ i s a l W ays excessive in a vessel that 
cannot reverse her engines and come to a standstill 
before she collides with a vessel that she ought to have 
seen, having regard to fog density." (Citing cases.) 

In The Haven, 277 Fed. 957, the court said: 

"A vessel navigating in a fog must go no faster than 
will permit her to stop within the distance she can see 
ahead" (p. 959). 

In The City of Norfolk, 266 Fed. 641, the court said: 

"In such navigation ' moderate speed' means speed so 
slow that a vessel can be stopped within the distance at 
which another vessel can be seen." 

At the rate of 12 knots, the Conner was making approxi- 
mately 1,300 feet per minute, or 300 feet in about 15 
seconds. According to the witnesses, the boats, when 
visible to each other, were at most not over 150 to 300 
feet apart. According to the commander's testimony, 
it would have been impossible to stop the Conner's speed 
of 12 knots at the point when they became visible. It 
may be speculation to endeavor to estimate what might 
have been done had the Conner been proceeding slower, 
but we are dealing with what actually happened at a 
speed which the court believes was highly excessive under 
the circumstances with the known result. 

In the case of Watts v. U. S. (supra) the warship 
Columbia was proceeding at about 6 knots per hour. The 
vessel with which she collided, the Foscolia, was not seen 
by anyone on the Columbia until she was within 75 yards. 

The Esperanza claims that the Conner was further at 
fault in failing to obey further provisions of article 16 of 
the International Rules, wherein it is provided that — 

"A steam vessel hearing, apparently forward of her 
beam, the fog signal of a vessel, the position of which 
is not ascertained, shall, so far as the circumstances of 
the case admit, stop her engines and then navigate with 
caution until danger of collision is over." 



20 vessels: ownership, charter, and service 

This rule is, of course, applicable to the Esperanza, as 
well as to the Conner. In view of the excessive speed of 
the Conner, which I believe was the proximate and con- 
tributing cause of the collision, the Experanza's failure 
to wholly stop her engines recedes in importance. It is 
not clear that the Conner heard the Experanza's first fog 
signal, although the commander says he heard a sound 
he thought might be a fog signal. Although his sense 
of hearing indicated that it might be a fog whistle, no 
change of speed took place. In Lie v. San Francisco & 
Portland S. S. Co., 243 U. S. 291, the master of the Selja 
attempted to excuse his failure to stop as required by 
article 16 by saying that when he first heard the faint 
signal from the approaching vessel he thought it might 
be a foghorn on the shore. The court, however, overruled 
the Selja's contention and held that the provisions of 
article 16 were mandatory and required all vessels to stop 
their engines immediately. The same argument, how- 
ever, as to the duty of the Esperanza might be applied 
to her, unless the circumstances of the case do not so 
admit. Neither of the navigators was free to substitute 
his judgment for the positive requirements of the rule. 
A former navigation rule vested the navigator with a 
ru i£ andatory degree of discretion. The present rule is mandatory 
and is positive law. It is also true that the position of a 
vessel whose fog signal is heard must be ascertained 
before proceeding. Three elements are involved, indeed, 
before proceeding — bearing, distance, and course. What- 
ever we might say, however, in regard to the duty to 
stop, it seems to me that the paramount negligence — 
indeed, the proximate cause, of the collision — was the 
excessive speed of the Conner and her failure to observe 
the rule regarding speed in fog. It is admitted by the 
commander of the Conner that had her speed been 4 knots, 
the collision would not have occurred. The 12-knot 
speed had continued for quite a time before the collision, 
and brought her swiftly to the point of collision. 

In view of the court's conclusion, I do not deem it 
necessary to consider the question as to whether the 
Conner was at fault for changing her course before the 
position and course of the Esperanza had been ascertained. 
The commander of the Conner hard aported his helm as 
soon as the Esperanza' s " string of lights" broke into 
view, and he admitted that in so doing he " gambled" 
on the Esperanza 's course. However, I think it is proper 



BURDEN OF LIABILITY 21 

to conclude that the error, if it was error, was committed 
at the moment of collision and may be regarded with less 
strictness than one committed when the vessels are more 
distant from each other. In like manner, reference 
might be made to the alleged contention that the Conner 
was at fault for failing to reverse her engines. This 
contention, however, is of interest more particularly 
because the Conner contends that she was justified in 
maintaining a speed of 12 knots, because of her tremen- 
dous backing power. That tremendous backing power — 
which was not exercised at the moment of crisis — dis- 
poses of the argument that the speed was excusable. 
The potential power was neither brought into play, nor 
in all human probability could it have had any effect in 
avoiding the collision, if used. In considering the re- 
sponsibility of the Esperanza, the court does not deem it 
necessary to consider the charge that she was navigated 
by persons not wholly competent. The evidence is to 
the contrary, and this contention requires no considera- 
tion ; but the question as to whether or not the Esperanza 
should have stopped her engines when she heard the fog 
signal of the Conner requires consideration. 

For more than an hour prior to the collision the 
evidence satisfies the court that the Esperanza had been 
making perhaps 3 knots, which was barely steerageway. 
Not only was that the testimony of the Esperanza's 
witnesses, but it is also supported by the Esperanza's 
engine-room slate. "The ship was turning over just as 
slow as the engine can be turned." 

Assuming that the burden also rests upon the Esper- Burden. 
anza of showing not merely that her failure to stop her 
engines when she heard the signal of the Conner might 
not have been one of the causes, or, rather, that it could 
not have been one of the causes of the collision, the 
record convinces me that that burden has been sus- 
tained. Had she stopped her engines, she would have 
lost steerageway entirely and " could not have been 
maneuvered." The failure of the Esperanza to stop her 
engines, assuming that it was her duty so to do, could 
not have been one of the causes of the collision. It was 
the gross negligence on the part of the Conner which 
accounts for the collision. In The City of New York, 147 
U. S. 72, at p. 85 Mr. Justice Brown said: 

" Where fault on the part of one vessel is established 
by uncontradicted testimony, and such fault is of itself 



22 



VESSELS: OWNERSHIP, CHARTER, AND SERVICE 



sufficient to account for the disaster, it is not enough for 
such vessel to raise a doubt with regard to the manage- 
ment of the other vessel." 

The Conner did not stop her engines when the com- 
mander " thought" he heard a whistle when proceeding 
at 12 knots, nor yet did he reverse his engines at any 
time either before or after the Esperanza became visible. 
He did, however, change his course. It now appears 
that had the rudder been put over exactly the opposite 
way, it would have " worked out better," as the com- 
mander said. However, these acts were done in extremis, 
and ought not to be considered faults of navigation. 
Judgment. The excessive speed of the Conner, particularly in its 

relation to the bare steerageway of the Esperanza, leads 
me to the conclusion that the total stoppage of the 
'Esperanza 1 's engines would not have prevented the 
collision, nor yet did that failure on her part in any way 
contribute to it. The Esperanza, at her speed, would 
have moved a negligible distance in the time that the 
Conner would have traversed a very considerable distance. 
The relation between two moving objects with differences 
of speed such as those two vessels is similar to the rela- 
tion of an almost stationary object and a moving object. 
The negligence of the Conner continued to operate as 
an efficient cause until the moment of the collision. 

The libel of the United States against the S. S. Esper- 
anza should be dismissed, with costs, and a decree will 
be entered in favor of the libellant. 



THE "MUDROS" 

May 2, 1918 

(2 Entseheidungen des Oberprisengerichts in Berlin, 87) 

In the case of the steamer Mu&ros the imperial su- 
perior prize court, in its session of May 2, 1918, has 
decided that the complaint of the imperial commissioner 
in Hamburg against the decree of the prize court of that 
place of May 18, 1917, must be rejected as inadmissible. 
Reasons : 
of The steamer Mudros was before the war a German 
merchant vessel and was lying in an Italian port at the 
time when Italy entered the war. The Italian Govern- 
Requisition by ment later requisitioned the vessel and handed it over to 
the Italian State Railways for their use. It sailed under 



Statement 
the facts. 



foreign 
ment. 



govern- 



THE MUDROS. THE SAO VICENTE 23 

the Italian flag, and on such a voyage was sunk in mi 
ocean by a German submarine. The case came before 
the prize court in Hamburg, which denied its compe- 
tence inasmuch as it lacked proof that the vessel had 
lost its German character. 

The judgment itself is to the point even if the con- 
siderations noted, upon which it rests, can not be con- 
curred in. The Mudros should have been regarded as a 
public vessel of Italy at the time of sinking, and should Public vessel, 
have been treated accordingly. In accordance with 
Article 2 of the Prize Code, vessels employed in services 
of the state, under the control of the state, are reckoned 
as public vessels, and public vessels of the enemy are for- 
feited without further formality under the laws of war. 
The suppositions mentioned were present in the case of 
the Mudros, she having been requisitioned by the Italian 
Government and employed for purposes of state under 
the Italian flag. On this ground, overtures for judicial 
proceedings before the prize court must in truth be 
refused. 

The complaint of the imperial commissioner, therefore, 
requires no actual change in the decision attacked. In- 
asmuch, however, as the prize court rules only take cog- 
nizance of judicial methods by which a decision as such 
can be attacked, the complaint must be rejected. 



THE "SAO VICENTE" 

(295 F. 829) 

Transportes Maritimos Do Estado v. T. A. Scott Co. (Inc.) 

CIRCUIT COURT OF APPEALS, THIRD CIRCUIT 

January 9, 1924 

Woolley, Circuit Judge: The question brought here 
on this appeal, broadly stated, is whether the District 
Court lost its jurisdiction in admiralty on a suggestion 
of immunity of a foreign sovereign from suit. The 
general rule exempting a government, sovereign in its 
attributes, from being sued without its consent is not 
disputed. Porto Rico v. Rosaly, 227 U. S. 270. The 
real question in the case is whether the sovereign, under 
the circumstances, gave or withheld its consent. 

The steamship Sao Vicente stranded on Packet Rock, statement of 
Sconticut Point, Mass. She was floated and delivered facts ' 
at New Bedford by the T. A. Scott Co. Later she made 



24 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

her way to New York Harbor where, incurring debts for 
repairs and supplies and failing to pay them, she was 
arrested under several libels filed in the District Court 
of the United States for the Southern District of New 
York and under this libel filed in the District Court of 
the United States for the District of New Jersey. Being 
represented in several suits by the same proctors who 
pursued in each suit the same line of defense, the pro- 
ceedings in some of the actions are, in the main, the 
same, and, to a certain extent, the questions raised are 
likewise the same. Hence, we refer to the opinion of 
the Circuit Court of Appeals for the Second Circuit in 
The Sao Vicente, 281 Fed. Ill, for a statement in detail 
of proceedings which, with the quoted pleadings, are, 
in a measure*, similar, mutatis mutandis, to those in the 
case at bar. 

We shall discuss the law applicable to the proceedings 
in the order in which they occurred. 

On April 11, 1921, the T. A. Scott Co. filed a libel in 
the district court against the steamship Sao Vicente and 
Transportes Maritimos Do Estado for salvage services. 
Whatever may be the character of this body, there can 
be no doubt of the libellant's right to institute suit or 
of the jurisdiction of the district court initially to enter- 
tain suit against it. Nor did the Transportes Mariti- 
mos Do Estado question either this right of the libellant 
or the jurisdiction of the court just then, but appeared 
by its proctors and filed a claim of ownership in the usual 
form, concluding with a prayer for leave to defend the 
action (281 Fed. 112). 

There was nothing said or done to indicate either the 
fact or purpose of a special appearance. Without doubt 
the claimant's appearance was general. Pursuant there- 
to, its proctors proceeded to a stipulation for costs, and 
to a stipulation for value in the usual form (281 Fed. 
113), upon condition to " abide by all orders of the court, 
interlocutory and final, and to pay the amount awarded." 
Whereupon the ship was released from custody and she 
sailed away, 
^oiaim of im- o n June 2, 1921, the claimant changed its proctors. 
On the same day its new proctor filed its answer, trav- 
ersing none of the averments of the libel, but raising for 
the first time the defense that the ship is a Portuguese 
vessel owned and operated by the Transportes Maritimos 
Do Estrada, which is a department of the Kepublic of 



CLAIM OF IMMUNITY 25 

Portugal; that it objects to and protests against the 
assumption of jurisdiction by the District Court in a 
suit to which the sovereign foreign government has not 
consented, maintaining that the settlement of the matter 
in dispute "should be left to the Portuguese consul at 
the port of New York." 281 Fed. 113. 

The answer was verified by Prista, vice consul general 
for the Republic of Portugal at New York. 

[1] Exceptions by the libellant to the claimant's 
answer were sustained by the District Court on the 
ground that the claimant had entered a general appear- 
ance, and, having submitted itself to the jurisdiction of 
the court, it thereby had waived any right to appear 
specially at that late day for the purpose of attacking 
its jurisdiction. 

We think the court was right on two grounds: First, 
because a sovereign may waive its immunity, and it is 
considered to have done so when it has entered litigation 
with a general appearance and when, as here, it has 
acted for a time and in a manner entirely consistent with 
such an appearance. Beers v. Arkansas, 20 How. 527; 
Olark v. Barnard, 108 U. S. 436, 447; Richardson v. 
Fajardo Sugar Co., 241 U. S. 44; Porto Rico v. Rosaly, 
227 U. S. 270; Porto. Rico v. Ramos, 232 U. S. 627; 
Gunter v. Atlantic Coast Line, 200 U. S. 273, 284; The 
Sao Vicente (C. C. A.), 281 Fed. 111. We know of no 
more orderly way for a foreign government to consent to 
suit and submit to jurisdiction than by the voluntary 
act of entering a general appearance, and when this is 
followed by conduct permissible only under an appear- 
ance of that character, the sovereign must be held to 
have waived its immunity to suit. It will not suffice for 
it to change its attitude after the litigation is under 
way, for, as Mr. Justice McKenna, in the Ramos case, 
supra, said: 

" The immunity of sovereignty from suit without its 
consent can not be carried so far as to permit it to reverse 
the action invoked by it and to come in and go out of 
court at its will, the other party having no right of 
resistance to either step." 

[2] Second, we think the trial court was right in sus- 
taining the exceptions to the claimant's answer for the 
added reason that the suggestion of immunity of the 
sovereign — itself insufficient in substance — was not made 
33474— 25f 3 



26 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

through the proper official channels. It was made in 
the claimant's answer signed by its proctor and verified 
by the Portuguese vice consul general at the port of 
New York. That the public status of a ship can not be 
determined upon the mere suggestion of private counsel 
was decided in ex parte Muir, 254 U. S. 522, and that the 
consul general of the Republic of Portugal is not compe- 
tent, merely by virtue of his office, to appear in court 
and claim immunity for his Government was decided 
in The Sao Vicente, 260 U. S. 151, on certiorari to the 
Circuit Court of Appeals for the Second Circuit, it being 
the case to which we have made frequent reference (281 
Fed. 111). Lacking competency by virtue of his office 
to speak for his Government, there is nothing in the 
record which shows that the vice consul general was 
specially authorized by his Government to interpose a 
claim to immunity on its behalf. Therefore, on the rec- 
ord as it stood after the court had, without error, sus- 
tained exceptions to the claimant's answer by striking 
out the abortive suggestion of immunity of a sovereign, 
the claimant remained on the record in the situation in 
which it had placed itself by its general appearance. 
Thereupon the court entered an interlocutory decree 
and made an order referring the amount of salvage to a 
special commissioner. Here another substitution of 
proctors occurred. 

The claimant did not introduce before the commis- 
sioner any evidence in opposition to the libellant's claim 
for salvage services, but presented to him an informa- 
tion, suggestion and petition of the Republic of Portugal 
for immunity from suit. This, very naturally, the com- 
missioner refused to accept. From this point the case 
differs from The Sao Vicente (C. C. A.) 281 Fed. 111. 

On January 24, 1923, the commissioner made a report 
awarding the libellant $50,000. No exceptions having 
been filed, the court, on February 20, 1923, affirmed the 
report and entered a final decree. 

[3] On March 2, 1923, the proctor for the claimant 
left in the office of the clerk of the court an order for 
the allowance of an appeal and at the same time "left 
for filing in the office of the said clerk" the information 
and suggestion previously presented to the commissioner, 
signed and verified by his excellency, Jose d'Alte, envoy 
extraordinary and minister plenipotentiary of the Re- 
public of Portugal, objecting to the exercise of jurisdic- 



PROCEDURE 2 7 

tion by the district court over the Transportes Maritimos 
Do Estado as an integral part of the sovereign Govern- 
ment of Portugal. As this information and suggestion 
had been signed and verified at Washington more than 
a month before the date of the final decree, and as it 
was brought to its attention for the first time 10 days 
after the date of the final decree, the District Court 
refused to regard it as having any bearing on the case. 
The claimant now maintains that the District Court 
erred in not opening the decree, accepting the suggestion, 
and yielding its jurisdiction. Without passing upon any 
question of error involved in the refusal of the court to 
open the decree and accept the suggestion, it is sufficient 
to say that, even if the court had done so, it would not 
have availed the claimant or the Republic of Portugal 
because the attempted suggestion was not conformable 
with the practice in such cases in that it was not pre- 
sented through the proper official channels. {Ex parte 
Muir, 254 U. S. 522.) 

The suggestion in the case at bar was presented by 
the Portuguese minister directly to the court. True, 
it was accompanied by a certificate of the Secretary of 
State to the effect that the minister whose name is 
subscribed thereto is duly accredited to this Government 
as envoy extraordinary and minister plenipotentiary of 
Portugal. As the Supreme Court said in The Pesaro, 
255 U. S. 216, " while that established his diplomatic 
status it gave no sanction to the suggestion." This is 
particularly true in view of a footnote to the certificate 
of the Secretary of State that, "For the contents of the 
annexed document the department assumes no re- 
sponsibility." In these circumstances "the libellants' 
objection that, to be entertained, the suggestion should 
come through official channels of the United States was 
well taken." Ex parte Muir, 254 U. S. 522; United 
States v. Lee, 106 U. S. 196, 209; Societa Commerciale 
Italiana di Nav. v. Maru Nav. Co. (D. C), 271 Fed. 97; 
Id. (C. C. A.) 280 Fed. 334, 335. 

On these authorities we are of opinion that the sug- 
gestion would have been without force had it been 
accepted by the court. The several acts of the Trans- 
portes Maritimos Do Estado, the Portuguese vice 
consul general at the port of New York, and the Portu- 
guese minister at Washington, being both tardy and 
without legal sanction, left the claimant where it stood 



28 



Decision. 



VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

on its general appearance and, therefore, left undisturbed 
the proceedings which went to final decree. 

We find ourselves in full accord with the decision of 
the Circuit Court of Appeals for the Second Circuit in 
The Sao Vicente, 281 Fed. Ill, in so far as that case 
resembles this one. Doubtless apprehending the force 
of that decision, based in part on The Carlo Poma, 255 
U. S. 219, the appellee moved to dismiss the appeal. 

The motion to dismiss the appeal is granted. 

Buffington, circuit judge, took no part in this decision. 



Statement 
acts. 



THE "GUL DJEMAL" 

The docket title of this case is: Steamship Gul Djemal, her engines, etc.; Hussein Lutfi 
Bey, master, v. Campbell & Stuart (Inc.). 

(264 U. S. 90) 

APPEAL FROM THE DISTRICT COURT OF THE 
UNITED STATES FOR THE SOUTHERN DISTRICT 
OF NEW YORK 

No. 83. Argued January 4, 1924.— Decided February 18, 1924 

The objection that a vessel, owned, possessed, manned, and oper- 
ated by a foreign State, but engaged in ordinary commerce 
under charter to a private trader, is immune to libel in the 
District Court for services and supplies, can not be raised 
by her master, who, although a naval officer, is not func- 
tioning as such, and is not shown to have authority to 
represent his sovereign in making the objection. 

296 Fed. 567, affirmed. 

Appeal from a decree of the District Court sustaining a 
libel against a ship, for services and supplies. 

Mr. William A. Purrington and Mr. John M. Woolsey, 
with whom Mr. Frank J. McConnell was on the brief, for 
appellant. 

Mr. Oscar K. Houston, with whom Mr. Ezra G. Bene- 
dict Fox was on the brief, for appellee. 

Mr. Justice McReynolds delivered the opinion of the 
Court, 
of Seeking to recover for supplies and services furnished 
at New York during November, 1920, in order to fit her 
for an intended voyage across the Atlantic, appellee 
libeled the steamship Gul Djemal and caused her arrest 
under the ordinary admiralty practice. Her master, 
appearing for the sole purpose of objecting to the court's 
jurisdiction, claimed immunity for the vessel because 
owned and possessed by the Turkish Government, and 



THE GUL DJERNAL 29 

asked that she be released. No one except the master has 
advanced this claim. 

The parties stipulated: 1 The Turkish Government and 
the United States are at peace with each other, but diplo- 

1 " First. That at all the times mentioned in the libel herein, and at the time of the arrest 
of the Gul Djemal, the Gul Djemal was owned by the Turkish or Ottoman Government, 
that it flies the Turkish flag; that Turkey has but one flag, for both national and com- 
mercial uses; that it is registered in the name of Seire-Seffain administration; that the 
Gul Djemal is the absolute property of the Ottoman Seire-Seffain administration, the 
third division of the ministry of marine of the Turkish Government, which is attached 
to the ministry of war; that the maritime title has been given to the administration 
Seire-Seffain by the ministry of war. Said Seire-Seffain administration, at the times 
above mentioned, was (and is) the transport section of the ministry of marine, and was 
(and is) charged with the control of transport vessels of the Turkish Government, and 
said vessels (of which the Gul Djemal was one), which are capable of commercial uses, 
are, when not used as transports, used in commerce; whether such vessels are used as 
transports or in commerce is subject to the direction of the ministry of marine, which, 
through departments other than the Seire-Seffain, has charge of battleships, artillery, 
torpedoes, wireless, and engineering work pertaining to all the vessels of the Turkish 
Navy; that the Gul Djemal was transferred for operation to the administration Seire- 
Seffain from the ministry of war in 1914 and has since been under the control of admin- 
istration of Seire-Seffain. 

"Said Seire-Seffain administration, at the times above mentioned, had (and has), as 
its head, a military offier of the Turkisk Govenment, in the active or reserve service 
of the Turkish Government, and said head must be, at all times, a military officer 
in the employ of the Turkish Government, the Seire-Seffain administration being 
charged with the transport of troops, and at all the times above mentioned, said head of 
the Seire-Seffain administration was a colonel; although said head of the Seire-Seffain ad- 
ministration, at the times above mentioned, was, in respect of the Gul Djemal, not 
functioning in a military or naval capacity. 

"Second. That at all the times mentioned in the libel herein, and at the time of the 
arrest of the Gul Djemal, the Gul Djemalwas in the possession of the Turkish Government, 
being manned by a master, officers, and crew employed by or under the direction of said 
Seire-Seffain administration, and paid by the Treasury Department of the Turkish 
Government through the administration Seire-Seffain; said master, at the times above 
mentioned, was (and is) a reserve officer in the Turkish Navy employed by the branch 
of the ministry of marine known as the administration Seire-Seffain, and the navi- 
gating officer was a lieutenant in the active service of the Turkish Navy, both detailed 
by the said ministry of marine to serve on the Gul Djemal during the times above men- 
tioned, but in such service they were not performing any naval or military functions, 
although they were subject to any orders from the department of the Turkish Govern- 
ment charged with naval or military affairs; the other officers and entire crew of the Gul 
Djemal, during the times above mentioned, were civilians, paid by the Turkish Govern- 
ment. 

"Third. That at all the times mentioned in the libel herein, and at the time of the 
arrest of the Gul Djemal, the Gul Djemal was engaged in commercial trade, under 
charter for one round voyage to George Dedeoglou, who engaged to carry passengers 
and goods for hire, and in such trade the Gul Djemal was not functioning in a naval or 
military capacity, nor was there anything of a naval or military character connected 
with the voyage of the Gul Djemal from Constantinople to New York and return. 

"Fourth. That the Turkish Government, prior to the time mentioned in the libel 
herein, had severed diplomatic relations with the United States of America, advising 
its peoples by proclamation, however, that American institutions should not be molested 
but should be treated as heretofore; that said diplomatic relations have not been resumed; 
although the United States of America maintains unofficial relations with the Turkish 
Government by American consular representatives, and through the medium of a high 
commissioner; that during said period of the severed relations, the Spanish ambassador 
to the United States has represented, and still represents, Turkish interests in the 
United States, and has been recognized as such representative by the Department of 
State of the United States of America. 

"Fifth. That the Turkish or Ottoman Government, and the Government of the 
United States of America, are sovereign governments, and were at all the times men- 
tioned herein, at peace with each other, although the Turkish or Ottoman Government 
was and is an ally of the enemy of the United States in the World War." 



30 vessels: ownership, charter, and service 

matic relations have been severed. The Gul Djemal is 
the absolute property of the Turkish Government and 
under the administration of the transport section of the 
oiaim of im- ministry of marine. That government employed and 
paid the master, officers, and crew — the master being a 
reserve naval officer — and was in possession of the ship 
when arrested. She "was engaged in commercial trade, 
under charter for one round voyage to George Dedeoglou, 
who engaged to carry passengers and goods for hire, and 
in such trade the Gul Djemal was not functioning in a 
naval or military capacity, nor was there anything of a 
naval or military character connected with the voyage of 
the Gul Djemal from Constantinople to New York and 
return." 

The court below denied the alleged immunity and 
passed a decree for the libellant. Upon this direct ap- 
peal only the question of jurisdiction is presented. The 
relevant certificate follows: 

"The sole question raised by the answer of the claim- 
ant herein, and the sole issue before this court, was the 
jurisdiction of the court over the steamship Gul Djemal, a 
vessel owned, manned, operated by and in the possession 
of the sovereign Government of Turkey, at peace with 
the Government of the United States of America. The 
allegations of the libellant that it had furnished supplies 
to the vessel, were admitted by the claimant, whose 
answer set up that the vessel was immune, as a sov- 
ereign-owned vessel, from the process of this court, and 
that the vessel was not within the admiralty and mari- 
time jurisdiction of this court. I have granted a decree 
for the amount prayed for by the libellant, and have 
denied immunity to the vessel because at the time the 
cause of action and liability on which the libel is founded 
were created, and at the time the vessel was seized under 
process of this court, she was, although owned, manned 
by, and in the possession of the sovereign Government 
of Turkey, engaged in commercial trade, under charter 
for hire to a private trader; and furthermore, because 
diplomatic relations between the United States and Tur- 
key were then severed and no appropriate suggestion 
was filed from the State Department of the United 
States." 

Appellee maintains that whatever may be the proper 
rule in our courts concerning the ultimate immunity of 
vessels owned by foreign governments and employed in 



PUBLIC STATUS 31 

ordinary trade and commerce, such immunity will not 
be granted upon the mere claim of the master, especially 
when the United States has no diplomatic relations with 
the sovereign owner. Such claim can be made only by 
one duly authorized to vindicate the owner's sovereignty. 
Ex parte Muir, 254 U. S. 522, 532, 533, is relied upon to 
support this view. It is there said — 

"As of right the British Government was entitled to 
appear in the suit, to propound its claim to the vessel, 
and to raise the jurisdictional question. * * * Or, 
with its sanction, its accredited and recognized repre- 
sentative might have appeared and have taken the 
same steps in its interest. * * * And, if there was 
objection to appearing as a suitor in a foreign court, it 
was open to that Government to make the asserted 
public status and immunity of the vessel the subject of 
diplomatic representations to the end that, if that claim 
was recognized by the executive department of this 
Government, it might be set forth and supported in an 
appropriate suggestion to the court by the Attorney 
General, or some law officer acting under his direction." 

Treating Ex parte Muir as relevant, appellant insists 
that within the meaning of the declaration there made 
the master of the Gul Djemal, a duly commissioned officer T J^^Q d rep " 
of the Turkish Navy, was the accredited and recognized 
representative of that Government, possessed of ade- 
quate authority to protest against the seizure and object 
to the court's jurisdiction. 

We agree with the view advanced by the appellee. 
The Anne, 3 Wheat. 435, reaffirmed by The Sao Vicente, 
260 U. S. 151, is enough to show that the immunity could 
not have been successfully set up by a duly recognized 
consul, representative of his sovereign in commercial 
matters, in the ordinary course of his official duties, and 
there seems no adequate reason to presume that the 
master of the Gul Djemal had any greater authority in ^M 00 - 
respect thereto. Although an officer of the Turkish 
Navy, he was performing no naval or military duty, and 
was serving upon a vessel not functioning in naval or 
military capacity but engaged in commerce under 
charter to a private individual who undertook to carry 
passengers and goods for hire. He was not shown to 
have any authority to represent his sovereign other 



32 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

than can be inferred from his position as master andfthe 
circumstances specified in the stipulation of J. acts. 

Affirmed. 

Mr. Justice Holmes concurs in the result. 



THE "WESTERN MAID" 

(257 U. S. 419) 

Ex parte in the matter of the United States, owner of the American 
steamship Western Maid, petitioner 

Ex parte in the matter of the United States, former requisitioned 
or chartered owner of the auxiliary schooner Liberty, petitioner 

Ex parte in the matter of the United States, former requisitioned 
and chartered owner of the American steamship Carolinian, 
petitioner 

PETITIONS FOR WRITS OF PROHIBITION AND/OR 

MANDAMUS 

Decided January 3, 1922 

1. Neither upon general principle nor under section 9 of the ship- 

ping act of September 7, 1916, or section 4 of the "Suits in 
Admiralty" act of March 9, 1920, 2 is the United States 
liable for a collision committed by a vessel while owned by 
it absolutely or pro hac vice and employed by it in public and 
government purposes. 

2. Held, that a vessel owned by the United States, assigned by the 

United States Shipping Board to the War Department, 
manned by a navy crew and engaged in transporting food- 
stuffs provided by the Government for the relief of the 
civilian population of Europe after the Great War, to be 
paid for by the buyer, was not a merchant vessel but a 

2 Pertinent parts of the statutes above mentioned are as follows: 

C. 451, sec. 9, 39 Stat. 730: "That any vessel purchased, chartered, or leased from the 
[United States Shipping] board may be registered or enrolled and licensed, or both 
registered and enrolled and licensed, as a vessel of the United States and entitled to the 
benefits and privileges appertaining thereto. * * * 

"Every vessel purchased, chartered, or leased from the board shall, unless otherwise 
authorized by the board, be operated only under such registry or enrollment and license. 
Such vessels while employed solely as merchant vessels shall be subject to all laws, regu- 
lations, and liabilities governing merchant vessels, whether the United States be inter- 
ested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest 
therein. No such vessel, without the approval of the board, shall be transferred to a 
foreign registry or flag, or sold; nor, except under regulations prescribed by the board, 
be chartered or leased. * * *" 

C. 95, sec. 4, 41 Stat. 525, 526: "That if a privately owned vessel not in the possession 
of the United States or of such [United States Shipping Board Emergency Fleet] corpora- 
tion is arrested or attached upon any cause of action arising or alleged to have arisen from 
previous possession, ownership, or operation of such vessel by the United States or by 
such corporation, such vessel shall be released without bond or stipulation therefor upon 
the suggestion by the United States, through its Attorney General or other duly author- 
ized law officer, that it is interested in such cause, desires such release, and assumes the 
liability for the satisfaction of any decree obtained by the libelant in such cause, and 
thereafter such cause shall proceed against the United States in accordance with the 
provisions of this act." 



THE WESTERN MAID 33 

vessel engaged in a public service; and that two others, 
while let or chartered to the United States on a bare-boat 
basis and devoted to military and naval uses were also of 
public status. 

3. The maritime law is part of the law of the country only in so 

far as the United States has made it so, and binds the United 
States only in so far as the United States has consented. 

4. The United States has not consented to be sued for torts and 

therefore it can not be said that, in a legal sense, the United 
States has been guilty of a tort. 

5. This immunity extends to public vessels of the United States, at 

least while employed in operations of Government; and lia- 
bility for a tort cannot be fastened upon them by the fiction 
of a ship's personality, to lie dormant while they remain 
with the Government and to become enforceable when they 
pass into other hands. The Siren, 7 Wall. 152, and Work- 
man v. New York City, 179 U. S. 552, distinguished. 

6. Prohibition lies to restrain the District Court from exceeding its 

jurisdiction in admiralty cases. 
Rule absolute for writs of prohibition. 

Petitions by the United States for writs of prohibition 
and mandamus to prevent District Courts from exercis- 
ing jurisdiction in three proceedings in rem for collisions 
that occurred while the vessels libeled were owned abso- 
lutely or pro hac vice by the United States and employed 
in the public service. 

Mr. Solicitor General Beck, with whom Mr. Assistant t ^^^f t e f< * 
Attorney General Ottinger and Mr. J. Frank Staley, states - 
special assistant to the Attorney General, were on the 
brief, for the United States. 

The vessels were all of distinctively public status when 
the collisions occurred. 

Section 9 of the shipping act has not waived the im- 
munity of the United States or its vessels from suits in 
rem for losses arising while they are employed in the war 
service. Both the collision loss and the enforcement of 
the claim against the vessel must occur while the Govern- 
ment vessel is employed solely as a merchant vessel, and 
then is operating for the account of others than the Gov- 
ernment, under charter or lease. 

The filing of suggestions under section 4 of the suits in 
admiralty act only determines the United States as claim- 
ant for the vessel and substitutes its credit for the pay- 
ment of the decree finally entered, if any, instead of the 
usual bond or stipulation for value otherwise entered to 
secure the release of a vessel from attachment. The 
proceedings continue as proceedings in rem. . Manifestly, 
33474— 25t 4 



34 VESSELS: OWNERSHIP, CHARTER, AXD SERVICE 

if the libel does not state a cause of action, in rem against 
the vessel, this section can not create one. 

Unless there is some magic in such public vessels' per- 
sonification, the Government can not be held for these 
torts. There is no distinction between the Government 
and its property. There should be no relief by indirection 
where Congress has not provided relief directly. Bighy 
v. United States, 188 U. S. 400, 408; Langford v. United 
States, 101 U. S. 341, 344; Gibbons v. United States, 8 
Wall. 269, 274. Public vessels are part of the sovereign 
State and their liabilities are merged in those of the 
sovereign. United States v. Ansonia Brass Co., 218 U. S. 
452; Board of Commissioners v. O'Connor, 86 Ind. 531, 
537; Rowley v. Conklin, 89 Minn. 172; The Fidelity, 16 
Blatchf. 569, 572, 573; The Parlement Beige, 4 Asp. M. C. 
234, 237, 241; The Prins FrederiJc, 2 Dods. 451. 

The law merchant personified the commercial ship not 
a public ship. Commercial vessels are sent in trade to 
all ports. Their owners are usually inaccessible for pur- 
poses of suit, and their personal responsibilities are uncer- 
tain. The necessities of the vessel's operation in merchant 
service demand that the vessel, the res, shall be respon- 
sible for her torts and contracts. The basis of the law 
governing merchant vessels is aid of commerce. Vande- 
water v. Mills, 19 How. 82; United States v. Brig Malek 
Adhel, 2 How. 210; The China, 7 Wall. 53; The Eugene 
F. Moran, 212 U. S. 466; The Young Mechanic, 2 Curtis 
404; Holmes, The Common Law, page 25; Mayer's Admi- 
ralty Law and Practice, page 8. The reason and the 
origin of the rule show that it can not apply to public 
ships engaged in war service. Cf. Ex parte New York, 
No. 1, 256 U. S. 490. 

Sovereign immunity includes immunity from lien 
liability as well as from process. Ex parte Muir, 254 
U. S. 522; Ex parte Hussein Lutji Bey, 256 U. S. 616; Ex 
parte New York, No. 1, 256 U. S. 490; Ex parte New 
York, No. 2, 256 U. S. 503; The Davis, 10 Wall. 15; The 
Tampico, 16 Fed. 491; Johnson Lighterage Co., 231 Fed. 
365; The Bock Island Bridge, 6 Wall. 213; Kawananakoa 
v. Polyblank, 205 U. S. 349; Riddoch v. State, 68 Wash. 
329; 32 Harv. Law Rev. 447; 30 Harv. Law Rev. 20. 
The Siren, 7 Wall. 152, and Workman v. New York City, 
179 U. S. 552, distinguished. Cf. Carr v. United States, 
98 U. S. 433, 439. 



CLAIM FOE OWNERS 35 

Mr. T. Catesby Jones, with whom Mr. James W. Ryan 0W n^i\ m 
was on the brief, for respondent in No. 21, Original. 

The Western Maid was a merchant vessel at the time 
of the collision. The sale of foodstuffs to enemy aliens 
is not a necessary function of the sovereign. Indeed, the 
act of February 25, 1919, 40 Stat. 1161, indicates the 
opinion of Congress that it was unwise for the Govern- 
ment to engage in trade with enemy populations. It is 
doubtful whether it is constitutional for the Government 
to engage in transporting foodstuffs to be offered for sale 
at destination. United States v. Strang, 254 U. S. 491; 
United States Shipping Board v. Wood, 274 Fed. 893. 

The collision took place two months after the armistice. 
Under such circumstances, the vessel could in no event be 
called a vessel engaged in a military operation. The 
Government has the burden of proof to establish that she 
was a public vessel engaged in a military operation. Ex 
parte Muir, 254 U. S. 522; In re Jupp, 274 Fed. 494, 485. 

Even if it were a fact that no freight was to be paid for 
the carriage, this circumstance would not affect the case. 
It was intended that her cargo was to be sold to the 
civilian population of Europe. 

There is no suggestion that the vessel was commis- 
sioned. The Exchange, 7 Cr. 116. On the contrary, the 
record shows that she was registered as a merchant ship, 
and it is to be inferred that she was operating under this 
registry. (Rev. Stats, sees. 4170, 4171; Navigation Laws 
of the United States, 1919, p. 41.) 

Congress, by the suits in admiralty act of 1920, has 
waived immunity as to merchant vessels. In effect this 
is a suit under that act. 

If we assume that the Western Maid was a public 
vessel at the time of the collision, nethertheless a claim 
in favor of the libelant was created against her at that 
time, which could be enforced in rem. The Siren, 7 
Wall. 152, 13 Wall. 389. The Government contends 
that the language in 7 Wall. 155, 156, 158, is a dictum. 
When the members of this court, in face of a single dis- 
sent, make a doctrine one of the principal grounds for 
the court's decision, such a doctrine can hardly be called 
a dictum. The Government suggests that, because the 
Siren was a prize, the case is distinguishable. This 
conclusion does not follow. See Lord, Admiralty Claims, 
19 Col. Law Rev. 477. 



36 vessels: ownership, charter, and service 

As we view the case, The Siren was a decision directly 
in point. The proposition relied upon by Mr. Justice 
Nelson as a ground for his dissent (7 Wall. 165), viz, that, 
if an owner of an offending vessel is not liable, it follows 
that there can be no lien, is contrary to the decisions in 
The China, 7 Wall. 53; Ralli v. Troop, 157 U. S. 386; 
The Blackheath, 195 U. S. 361; Tucker v. Alexandroff, 
183 U. S. 424; The Palmyra, 12 Wheat. 1; Brig. Malek 
Adhel, 2 How. 210; The John G. Stevens, 170 U. S. 122; 
and The Barnstable, 181 U. S. 464, 467. 

Liability in rem is entirely independent of liability in 
personam. Homer Ramsdell Co. v. La Compagnie Gen- 
erate Transatlantique, 182 U. S. 406. 

Because of the difference between the American and 
English conceptions of the liability of a ship, the Eng- 
lish authorities are not in point. The Davis, 10 Wall. 
15; The Carlo Poma, 259 Fed. 369. But even in Eng- 
land it is settled, as was said in Workman v. New York 
City, 179 U. S. 552, that a collision impresses a liability 
on a public vessel which becomes enforcible when the 
crown waives the immunity of the public vessel. The 
Ticonderoga, 1 Swab. Adm. Rep. 215; Fletcher v. Brad- 
dick, 2 Bos. & P. 182. 

In Ex parte New York, No. 1, 256 U. S. 490, this court 
said that the Workman Case dealt with a question of the 
substantive law of admiralty, not the power to exercise 
jurisdiction over the person of the defendant. 

The doctrine of The Davis and The Siren has long been 
familiar to the Federal courts. The Tampico, 16 Fed. 
491; Thompson Navigation Co. v. Chicago, 79 Fed. 984; 
. Johnson Lighterage Co., 231 Fed. 365; The Attualita, 238 
Fed. 909; The Luigi, 230 Fed. 493; The Othello, 5 
Blatchf. 343. 

The Fidelity, 16 Blatchf. 569, was disapproved in 
Thompson Navigation Co. v. Chicago, 79 Fed. 984, and, 
so far as its dictum indicated a departure from the doc- 
trine of The Siren and The Davis, was expressly dis- 
approved in Workman v. New York City, 179 U. S. 552, 
and in The Ceylon Maru, 266 Fed. 396. See also The 
U. S. S. Hisko, U. S. S. Roanoke and U. S. S. Pocahontas, 
S. D. N. Y., March 17, 1921, Manton, J., (unreported); 
The U. S. S. Newark, S. D. N. Y., March 18, 1921, Knox, 
J., (unreported) ; The U. S. S. Sixaola, S. D. N. Y., April 
21, 1921, Mayer, J., (unreported) ; The F. J. Luckenbach, 
267 Fed. 931; The Liberty (unreported); now before this 



MARITIME LAW AND PUBLIC VESSELS 37 

court; The Carolinian, 270 Fed. 1011. And see The Flor- 
ence E, 248 Fed. 1012; The Gloria, 267 Fed. 929; The 
City of Philadelphia, 263 Fed. 234; United States v. 
Wilder, 3 Sumner, 308, 312. 

The principle that the maritime law extends to public 
vessels has been recognized by Congress, Act of August 
19, 1890, c. 802, 26 Stat. 320; Rev. Stats., sec. 4233; The 
Esparta, 160 Fed. 269; The A. A. Raven, 231 Fed. 380. 
Cf. Admiralty v. S. S. Eleanor, VI Lloyd's List Law Rep. 
456. 

It can not be said that the liability arises from the act 
of the Government in waiving its immunity from suit. 
It existed before this suit; otherwise there could be no 
cause of action on which to base the suit. United States 
v. Ringgold, 8 Pet. 162; United States v. Lee, 106 U. S. 
196, 206; Lord, Admiralty Claims, 19 Col. Law Rev. 477; 
Hearings, Senate Committee on Commerce, 66th Cong., 
1st sess., on S. 2253, p. 18. 

Kawananakoa v. Polyblank, 205 U. S. 349, 353, was not 
a suit in admiralty and the facts were wholly different 
from those in this case. It was not there intended to 
modify the doctrine of The Siren, The Davis, and of the 
Ringgold Case, supra. 

Mr. Edward E. Blodgett, with whom Mr. Foye M. 
Murphy was on the brief, for respondent in No. 22, 
Original. 

The burden of proving immunity from the lien is upon 
the petitioner. The Tampico, 16 Fed. 491. 

The Liberty was subject to a maritime lien arising out 
of this collision. The Bold Buccleugh, 7 Moore P. C. 
267; The China, 7 Wall. 53; Ralli v. Troop, 157 U. S. 
386; Briggs v. Light Boat, 7 Allen, 287; The John G. 
Stevens, 170 U. S. 113; Holmes, The Common Law, pp. 
26-34; The Little Charles, 1 Brock. 347; The Palmyra, 
12 Wheat. 1; United States v. Brig Malek Adhel, 2 How. 
210; The John Fraser, 21 How. 184; The Merrimac, 14 
Wall. 199; The Clarita, 23 Wall. 1; The Barnstable, 181 
U. S. 464; The Luigi, 230 Fed. 493; Johnson Lighterage 
Co., 231 Fed. 365. 

The lien arises though the vessel be owned, manned, 
and operated by a sovereign for war purposes. United 
States v. Wilder, 3 Sumner, 308; The Davis, 10 Wall. 15; 
The Siren, 7 Wall. 152; Workman v. New York City, 179 
U. S. 552; The Florence E, 248 Fed. 1012; The Gloria, 



38 vessels: ownership, charter, and service 

267 Fed. 929; The F. J. Luckenbach, 267 Fed. 931; The 
City of Philadelphia, 263 Fed. 234. 

The property of a sovereign is not immune from pre- 
existing maritime liens. Briggs v. Light Boat, supra; 
United States v. Wilder, supra; The St. Jago de Cuba, 9 
Wheat. 416; The Copenhagen, 1 C. Rob. Adm. 289. 

The petitioner by the act of March 9, 1920, has im- 
pliedly admitted that a lien may be created upon vessels 
owned or operated by it. 

In England, technical immunity attaches to all prop- 
erty owned by the crown, irrespective of whether or not 
it is in possession of the sovereign. The Broadmayne, 
L. R. [1916] P. D. 64; The Scotia, [1903] A. C. 501. 
But the lords commissioners of the admiralty represent 
the crown, and have a discretionary power, freely exer- 
cised, to waive the privileges of the crown and consent to 
jurisdiction. The Fidelity, 16 Blatchf. 569; United States 
v. NewYork cfc Oriental S. S. Co., 216 Fed. 61 ; Thompson 
Navigation Co. v. Chicago, 79 Fed. 984; United States v. 
Lee, 106 U. S. 196, 208; Homer Ramsdell Co. v. La Com- 
pagnie Generate Transatlantique, 182 U. S. 406. Further- 
more, the personification of the res is not carried so far 
in England as in the United States. In the former the 
procedure in rem is used merely as a means to compel the 
appearance of the respondent, and judgment runs against 
the individual — the seizure of the res is incidental. The 
Parlement Beige, 5 P. D. 197. 

Mr. Charles S. Haight, with whom Mr. Wharton Poor 
was on the brief, for respondent in No. 23, Original. 

The case of the Carolinian is materially different from 
that of the Western Maid and other cases, where at the 
time of the collision title to the ship was in the Govern- 
ment. 

The officers in command of the Carolinian when this 
collision occurred, while imposed upon the ship by the 
authority of the Government under the act of June 15, 
1917, occupied no different position from the compulsory 
pilot imposed upon the China. (7 Wall. 53.) The John 
G. Stevens, 170 U. S. 113; Tucker v. Alexandroff, 183 
U. S. 424; Workman v. NewYork City, 179 U. S. 552. 

The decisions show that in order to sustain a suit in 
rem for collision only two conditions need exist: (1) 
Fault on the part of the navigators, and (2) the ability 
of the court to execute its process by seizure. 



EXEMPTION FROM LIEN 39 

The attributes of sovereignty do not inure to the 
benefit of private individuals. Moran v. Horslcy, 178 
U. S. 205. 

That a national war vessel may be held in fault for a 
collision due to the negligence of her officers and crew 
was directly decided in The Sapphire, 11 Wall. 164. 

Even if, at the time of the collision, the Carolinian 
had been owned by the United States, an inchoate lien 
would nevertheless have been created which could be 
enforced in the present suit. The Florence E, 248 Fed. 
1012; The F. J. Luckenbach, 267 Fed. 931; The Gloria, 
267 Fed. 929; The Ceylon Maru, 266 Fed. 396; Johnson 
Lighterage Co., 231 Fed. 365; The Tampico, 16 Fed. 491; 
United States v. Wilder, 3 Sumner, 308; The City of 
Philadelphia, 263 Fed. 234; The Siren, 7 Wall. 152; The 
Davis, 10 Wall. 15; Workman v. New York City, 179 
U. S. 552. 

The only basis on which the exemption of Govern- 
ment property from such a lien can be rested is the 
media? val doctrine of " prerogative/' which forms no 
part of our jurisprudence. Dollar Savings Bank v. 
United States, 19 Wall. 227; United States v. Wilder, 
supra. 

Nor is there any principle of public policy which pre- 
vents the creation of a maritime lien against a public 
vessel owned by the United States. When the privately 
owned vessel is at fault, the United States collects its 
damages from the ship or her owners, and it is only fair 
that a private owner should have a like right when the 
Government ship is to blame. Congress has recognized 
this principle of equality by making the statutory rules 
for preventing collisions at sea binding upon public ships 
as well as private, 26 Stat. 320; 28 Stat, 645; 2 Fed. 
Stat. Ann., 2d ed., 376, 402, 449. If a merchant ship 
and a war ship are equally at fault, the damages are 
divided. The Sapphire, supra. 

The justice of paying claims arising out of collisions for 
which public vessels were at fault has always been recog- 
nized by Congress through many special acts allowing 
claims. 

The doctrine of the immunity of the sovereign from 
suit — to which so many exceptions have been made by 
statute as almost do away with the rule — is based not 
upon principle but upon precedent. United States v. 
Lee, 106 U. S. 196, 206; United States v. Emery Bird 
Thayer Realty Co., 237 U. S. 28, 32. This is evidenced 



40 



vessels: ownership, charter, and service 



Opinion 
court. 



Statement 
fact. 



of 



of 



by the practical relief from it in collision cases afforded 
in England, France, Germany, and in the State of New 
York. 

The act of March 9, 1920, is^an express recognition by 
Congress that a maritime lien may^exist against a public 
vessel even though used solely for governmental purposes, 
and as the United States has secured the release of the 
Carolinian under this act it can not now contend that the 
court is without jurisdiction. 

Mr. Justice Holmes delivered the opinion of the court. 

These are petitions for prohibition to prevent district 
courts of the United States from exercising jurisdiction of 
proceedings in rem for collisions that occurred while the 
vessels libeled were owned, absolutely or pro hac vice, by 
the United States, and employed in the public service. 
The questions arising in the three cases are so nearly the 
same that they can be dealt with together. 

The Western Maid was and is the property of the 
United States. On January 10, 1919, she was allocated by 
the United States Shipping Board to the War Department 
for service as a transport. She had been loaded with 
foodstuffs for the relief of the civilian population of 
Europe, to be delivered on arrival at Falmouth, England, 
to the order of theJfFood Administration Grain Corpora- 
tion, the consignor, American Embassy, London, care of 
the chief quartermaster, American Expeditionary Forces, 
France; subject to the direction of Mr. Hoover. If it 
should prove impracticable to reship or redirect to the 
territories lately held by the Central Empires, Mr. 
Hoover was to resell to the Allied Governments or to the 
Belgian Relief; the foodstuffs to be paid for by the buyer. 
The vessel was manned by a Navy crew. Later on the 
same day, January 10, 1919, in the New York Harbor, 
the collision occurred. On March 20, 1919, the vessel 
was delivered to the United States Shipping Board. The 
libel was filed on November 8, 1919. Act of September 
7, 1916, c. 451, sec. 9, 39 Stat. 728, 730. The Lake Mon- 
roe, 250 U. S. 246. On February 20, 1920, the Govern- 
ment moved that it be dismissed for want of jurisdiction. 
The district court overruled the motion. On April 11, 
1921, the Attorney General moved for leave to file the 
present petition in this court. Leave was granted and 
the case has been heard. 



THE LIBERTY AND THE CAROLINIAN 41 

The Liberty was a pilot boat let to the United States 
on the bare-boat basis at a nominal rate of hire. She had 
been manned by a crew from the United States Navy and 
commissioned as a naval dispatch boat, and was employed 
to serve military needs in war service. The collision took 
place on December 24, 1917, while she was so employed, in 
Boston Harbor. Afterwards the vessel was redelivered to 
the owners, and still later, on February 5, 1921, the suit 
now in question was brought against her. On February 
14, under the act of March 9, 1920 (c. 95, sec. 4, 41 Stat. 
525), the United States filed a suggestion of its interest, 
and also set up the above facts. The district court held 
that they constituted no defense, and this petition was 
brought by the Attorney General along with that last 
mentioned. 

The steamship Carolinian had been chartered to the 
United States upon a bare-boat charter and had been 
assigned to the War Department, by which she was 
employed as an Army transport and furnished with an 
Army crew. While she was so employed the collision 
took place in the harbor of Brest, France, on February 15, 
1918. Afterwards the Carolinian was returned to the 
owners and she was employed solely as a merchant vessel 
on July 9, 1920, when the suit in question was begun, 
under which the vessel was seized. In the same month 
the United States filed a suggestion of interest and on 
January 6, 1921, set up the foregoing facts and prayed 
that the libel be dismissed. The District Court main- 
tained its jurisdiction and this petition was brought by 
the Attorney General along with the other two. (270 
Fed. 1011.) 

It may be assumed that each of these vessels might Liability of the 
have been libeled for maritime torts committed after the Umted states - 
redelivery that we have mentioned. But the act of Sep- 
tember 7, 1916 (c. 451, sec. 9), does not create a liability 
on the part of the United States, retrospectively, where 
one did not exist before. Neither, in our opinion, is such 
a liability created by the act of March 9, 1920 (c. 95, 
sec. 4), authorizing the United States to assume the 
defense in suits like these. It is not required to abandon 
any defense that otherwise would be good. It appears 
to us plain that before the passage of these acts neither 
the United States nor the vessels in the hands of the 
United States were liable to be sued for these alleged 
maritime torts. The Liberty and the Carolinian were 



42 vessels: ownership, charter, and service 

employed for public and Government purposes and were 
owned pro hac vice by the United States. It is suggested 
that the Western Maid was a merchant vessel at the time 
of the collision, but the fact that the food was to be paid 
for and the other details adverted to in argument can not 
disguise the obvious truth that she was engaged in a 
public service that was one of the constituents of our 
activity in the war and its sequel and that had no more 
to do with ordinary merchandizing than if she had car- 
ried a regiment of troops. The only question really open 
to debate is whether a liability attached to the ships 
which, although dormant while the United States was in 
possession, became enforcible as soon as the vessels came 
into hands that could be sued. 
Maritime law. In deciding this question we must realize that however 
ancient may be the traditions of maritime law, however 
diverse the sources from which it has been drawn, it de- 
rives its whole and only power in this country from its 
having been accepted and adopted by the United States. 
There is no mystic overlaw to which even the United 
States must bow. When a case is said to be governed by 
foreign law or by general maritime law, that is only a 
short way of saying that for this purpose the sovereign 
power takes up a rule suggested from without and makes 
it part of its own rules. The Lottawanna, 21 Wall. 558, 
571, 572. Dalrymple v. Dalrymple, 2 Hagg. Cons. 54, 58, 
59. Dicey, Conflict of Laws, 2d ed., 6, 7. Also we must 
realize that the authority that makes the law is itself 
superior to it, and that if it consents to apply to itself the 
rules that it applies to others the consent is free and may 
be withheld. The sovereign does not create justice in an 
ethical sense, to be sure, and there may be cases in which 
it would not dare to deny that justice for fear of war or 
revolution. Sovereignty is a question of power, and no 
human power is unlimited. Carino v. Insular Govern- 
ment of the Philippine Islands, 212 U. S. 449, 458. But 
from the necessary point of view of the sovereign and its 
organs whatever is enforced by it as law is enforced as the 
expression of its will. Kawananakoa v. Polyolank, 205 
U. S. 349, 353. 

The United States has not consented to be used for 
torts, and therefore it can not be said that in a legal sense 
the United States has been guilty of a tort. For a tort is 
a tort in a legal sense only because the law has made it so. 
If then we imagine the sovereign power announcing the 



LEGAL OBLIGATIONS 43 

system of its laws in a single voice it is hard to conceive 
it as declaring that while it does not recognize the possi- 
bility of its acts being a legal wrong and while its immu- 
nity from such an imputation of course extends to its 
property, at least when employed in carrying on the oper- 
ations of the Government — specifically appropriated to 
national objects, in the language of Buchanan v. Alexan- 
der, 4 How. 20 — yet if that property passes into other 
hands, perhaps of an innocent purchaser, it may be seized 
upon a claim that had no existence before. It may be said 
that the persons who actually did the act complained of 
may or might be sued and that the ship for this purpose 
is regarded as a person. But that is a fiction, not a fact, 
and as a fiction is the creation of the law. It would be a 
strange thing if the law created a fiction to accomplish 
the result supposed. It is totally immaterial that in deal- 
ing with private wrongs, the fiction, however originated, 
is in force. See Liverpool, Brazil do River Plate Steam 
Navigation Co. v. Brooklyn Eastern District Terminal, 
251 U. S. 48, 53. The personality of a public vessel is 
merged in that of the sovereign. The Fidelity, 16 
Blatchf, 569, 573. Ex parte State of New York, No. 2, 
256 U. S. 503. 

But it is said that the decisions have recognized that 
an obligation is created in the case before us. Legal obli- 
gations that exist but can not be enforced are ghosts that 
are seen in the law but that are elusive to the grasp. The 
leading authority relied upon is The Siren, 7 Wall. 152. 
The ground of that decision was that when the United 
States came into court to enforce a claim it would be 
assumed to submit to just claims of third persons in 
respect of the same subject-matter. 7 Wall. 154. Carrv. 
United States, 98 U. S. 433, 438. In reaching its result 
the court spoke of such claims as unenforcible liens, but 
that was little more than a mode of expressing the consent 
of the sovereign power to see full justice done in such 
circumstances. It would have been just as effective and 
more accurate to speak of the claims as ethical only, but 
recognized in the interest of justice when the sovereign 
came into court. They were treated in this way by Dr. 
Lushington in The Athol, 1 Wm. Rob. 374, 382. Further 
distinctions have been taken that need not be adverted to 
here. There was nothing decided in Workman v. New 
York City, 179 U. S. 552, that is contrary to our conclu- 
sion, which, on the other hand, is favored by The Fidelity, 



44 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

16 Blatchf. 569, 573, and Ex 'parte State of New Yorlc, 
No. 1, 256 U. S. 490, and Ex parte State of New Yorlc, 
No. 2, 256 U. S. 503. The last cited decisions also show 
that a prohibition may be granted in a case like this. 
See Tie Ira M. Hedges, 218 U. S. 264, 270. 
Rule absolute for writs of prohibition. 
Mr. Justice McReynolds did not hear the argument 
in this case and took no part in the decision. 

op^ions enting Mr- Justice McKenna, with whom concurred Mr. 
Justice Day and Mr. Justice Clarke, dissenting. 

The question in the cases is without complexity, and 
the means of its solution ready at hand. The question is, 
What is the law applicable to colliding vessels and what 
remedy is to be applied to the offending one, if there be 
an offending one? The question, I venture to say, has 
unequivocal answer in a number of decisions of this court 
if they be taken at their word. And why should they 
not be ? That they have masqueraded in a double sense, 
can not be assumed; that they have successively justified 
implications adverse to their meaning would be a matter 
of wonder. 

What then do they express to be the law of colliding 
vessels, the assignment of offence, if offence there be, 
and how far is it dependent, if at all, upon whether the 
offender was in public or private service ? 

risd?ction lty 3u * ^e answer m &y be immediate. This court has kept 
steadily in mind that the admiralty jurisprudence of the 
country, as adopted by the Constitution, has a distinctive 
individuality, and this court has felt the necessity of 
keeping its principles in definite integrity, and the r me- 
dies intact by which its principles can alone be realized. 
The most prominent and efficient of its remedies is that 
which subjects its instrumentalities, its ships particularly, 
to judgment. Personality is assigned to them and they 
are considered to pledge to indemnify any damage in- 
flicted through them. They are made offenders and have 
the responsibility of offenders, and the remedy is suited 
to the purpose. In Rounds v. Cloverport Foundry <& 
Machine Co., 237 U. S. 303, 306, it is said, Mr. Justice 
Hughes delivering the opinion of the court, " The pro- 
ceeding in rem which is within the exclusive jurisdiction 
of admiralty is one essentially against the vessel itself 
as the debtor or offending thing, — in which the vessel is 
itself ' seized and impleaded as the defendant, and is 
judged and sentenced accordingly."' 



COLLISION LIABILITY 45 

In the John G. Stevens, 170 U. S. 113, 120, the court, 
through Mr. Justice Gray, declared, " The foundation of 
the rule that collision gives to the party injured a jus in re 
in the offending ship is the principle of the maritime law 
that the ship, by whomsoever owned, or navigated, is con- 
sidered as herself the wrongdoer, liable for the tort, and 
subject to a maritime lien for the damages. This princi- 
ple, as has been observed by careful text writers on both 
sides of the Atlantic, has been more clearly established 
and more fully carried out, in this country than in Eng- 
land. Henry on Admiralty, section 75, note; Marsden 
on Collisions (3d ed.) 93." The case in many ways and 
by many citations fortifies and illustrates the principle. 5 

The Siren was cited and the fact is pertinent as we 
shall presently see. The China, 7 Wall. 53, was also cited 
and quoted from. The quotation was repeated in Ralli 
v. Troop, 157 U. S. 386, 402, 403, where it is said that the ■ 
liability of a vessel is not derived from the authority or 
agency of those on board, either under the civil or com- 
mon law, " but upon a distinct principle of maritime law, 
namely, that the vessel, in whosesoever hands she law- 
fully is, is herself considered as the wrongdoer, liable for 
the tort, and subject to a maritime lien for the damages. 

In Tucker v. Alexandroff, 183 U. S. 424, 438, this court 
by Mr. Justice Brown gave graphic representation to the 
same principle. He described a ship prior to her launch- 
ing as "a mere congeries of wood and iron 7 ' but after 
launching she took on a name, a personality of her own 
and had in a sense volition, became competent to contract 
and be contracted with, sue and be sued, could have 
agents of her own, was capable of committing a tort and 
was pledged to its reparation. Cases were cited, the 
Siren among others. 

The doctrine thus explicitly announced is denied appli- 
cation in the pending cases and upon what grounds ? As 
I understand, the contention is that a vessel has not inde- 
pendent guilt, that there must be fault in its owner or 
operator, his fault becoming its fault. This has been said, 
but it puts out of view her character as bail and that the 
innocent victim of the injury she has inflicted shall not 

» General Mutual Insurance Co. v. Sherwood, 14 How. 351, 363; The Creole, 2 Wall. 
Jr. 485, 518; The Mayurla, 2 Curtis, 72, 77; The Young Mechanic, 2 Curtis, 404; The 
Kiersage, 2 Curtis, 421; The Yankee Blade, 19 How. 82, 89; The Rock Island Bridge, 
6 Wall. 213, 215; The China, 7 Wall. 53, 68; The Siren, 7 Wall. 152, 155; The Lottawanna, 
21 Wall. 558, 579; The J. E. Rumbell, 148 U. S. 1, 10, 11, 20; The Glid-, 167 U. S. 606. 



46 vessels: ownership, charter, and service 

be remitted to the insufficient or evasive responsibility of 
persons but shall have the security of the tangible and 
available value of the thing. And this responsibility and 
fullness of indemnity we have seen it was declared in the 
John G. Stevens, supra, distinguished the law of this 
country from that of England. 

But if the contention were conceded it would not deter- 
mine these cases. I reject absolutely that because the 
Government is exempt from suit it can not be accused of 
fault. Accountability for wrong is one thing, the wrong 
is another. 

But I do not have to beat about in general reasoning. 
I may appeal to the authority of the Siren, 7 Wall. 152 
and the cases that have approved and followed it. A 
gloss is attempted to be put upon it — which we think is 
unjustified and inaccurate unless, indeed, it can be as- 
. serted that the writer of the opinion did not know the 
meaning of the words he used, and, that the members of 
the court who concurred with him, were equally deficient 
in understanding. And their insensibility to what the 
words conveyed had no excuse. A dissenting justice 
tried to bring their comprehensive import to understand- 
ing, proclaimed indeed, that the words had the extent 
and consequence that the court now says wer^ not 
intended or accomplished. 
The siren. The Siren, while in charge of a prize master and crew, 

having been taken in prize by the United States, ran into 
in the port of New York and sank the sloop Harper. The 
collision was regarded by the court as the fault of the 
Siren. She was condemned as prize and sold and the 
proceeds deposited with the Assistant Treasurer of the 
United States. The owners of the Harper asserted a 
claim upon her and her proceeds for the damages sus- 
tained by the collision. The District Court rejected the 
claim. Its action was reversed by this court. 

The United States was an actor in the case and this 
was regarded by the court, who spoke by Mr. Justice 
Field, as removing the impediment to the claim of the 
owners of the Harper. It was not, however, the basis 
of recovery. There was no confusion in the language or 
conception of the learned justice, nor in the court, of 
that. By becoming the actor, the United States, it was 
said, waived its exemption from direct suit and opened 
" to consideration all claims and equities in regard to the 



DISTINCTION IN LIABILITIES 47 

property libelled" — not, of course, that the waiver of 
exemption created the " claims and equities." They, it 
was explicitly said, were created against the offending 
vessel by the collision. "In such case," the language 
was, " the claim exists equally as if the vessel belonged to 
a private citizen, but for reasons of public policy, already 
stated, can not be enforced by direct proceedings against 
the vessel." And again, "The inabilit}^ to enforce the 
claim against the vessel is not inconsistent with its 
existence." 

The distinction was clearly made between exemption 
of the United States, the offense of the vessel and the 
existence of a claim against it in consequence of its 
offense. And the distinction was emphasized in the dis- 
sent of Mr. Justice Nelson. He was at pains to distin- 
guish between liability to suit and legal liability for the 
act of injury, the ground of suit. And the basis of his 
dissent was the same as the basis of the opinion of the 
court in the present cases, but not so epigrammatically 
expressed. In the opinion in these cases it is said that 
" the United States has not consented to be sued for torts, 
and therefore it can not be said that in a legal -sense the 
United States has been guilty of a tort. For a tort is a 
tort in a legal sense only because the law has made it so. " 

Mr. Justice Nelson was more discursive. He said that 
"if the owner of the offending vessel [he regarded the 
Siren as owned by the United States] is not liable at all 
for the collision, it follows, as a necessary legal conse- 
quence, that there can be no lien, otherwise the nonlia- 
bility would amount to nothing." And again, "if the 
Government is not responsible, upon the principles of the 
common law, for wrongs committed by her officers or 
agents, then, whether the proceedings in the admiralty are 
against the vessel, or its proceeds, the court is bound to 
dismiss them. " And giving point to this view the learned 
justice observed that "no principle at common law is 
better settled than that the Government is not liable for 
the wrongful acts of her public agents." 

I repeat, that in view of these extracts from Mr. Justice 
Nelson's dissent, misapprehension of its opinion by the 
court is not conceivable nor carelessness of utterance. 
Yet the opinion in the present cases practically so asserts 
and, in effect, regards Mr. Justice Nelson's dissent as the 
1 aw of the Siren and not that which the court pronounced. 



48 vessels: ownership, charter, and service 

The court decided that the vessel was the offending thing, 
and though it could not be reached in the hands of the 
Government, this " inability to enforce the claim against 
the vessel" was "not inconsistent with its existence." 

The inevitable deduction is that in such situation the 
enforcement of a claim is suspended only, and when the 
vessel passes from the hands of the Government, as the 
offending vessels have in the cases at bar, they and " all 
claims and equities in regard to" them may be enforced. 

The case was commented on in The Davis, 10 Wall. 15, 
20, and the gloss now put upon it rejected. It is there 
said that the well-supported doctrine of the case is "that 
proceedings in rem to enforce a lien against property of 
the United States are only forbidden in cases where, in 
order to sustain the proceeding, the possession of the 
United States must be invaded under process of the 
court." 

So again in Workman v. New York Oity, 179 U. S. 552, 
where it is said, Chief Justice White delivering the opinion 
of the court, after an exhaustive review of cases, such as 
he usually gave, "It results that, in the maritime law, the 
public nature of the service upon which a vessel is engaged 
at the time of the commission of a maritime tort affords 
no immunity from liability in a court of admiralty, where 
the court has jurisdiction." In view of this it is difficult 
to understand how it can be said that there was nothing 
that case decided contrary to the conclusion in these cases. 

Against this array of cases and their reasoning, Ex parte 
State of New York, No. 2, 256 U. S. 503, and Ex parte 
State of New York, No. 1, 256 U. S. 490, are adduced. 
Neither case has militating force. The latter case decided 
nothing but that a State can not be sued without its con- 
sent. An indisputable proposition which this court in its 
opinion had to clear from confusing or disturbing circum- 
stances. In the former case, The Queen City, a steam 
tug, was in the possession and service of the State of New 
York and to have awarded process against it as the dis- 
trict court did, would have arrested the service. This 
court rightfully reversed that action. The tug had not 
been released from that immunity as the vessels were in 
the pending cases. 



THE CHARLOTTE 49 

Counsel for claimants in opposition to the petition cite 
cases at circuit and district which followed The Siren. 4 
It is not necessary to review or comment upon them. 
They are testimony of what the judiciary of the country 
considered and consider The Siren and other cases decided. 
Therefore we can not refrain from saying that it is strange, 
that notwithstanding the language of The Siren, its under- 
standing and acceptance in many cases in this court, the 
enforcement of its doctrine at circuit and district, it should 
now be declared erroneous. The cases at bar would seem 
to be cases for the application of the maxim of stare decisis 
which ought to have force enough to resist a change based 
on finesse of reasoning or attracted by the possible accom- 
plishment of a theoretical correctness. 

The rules should be discharged. 



THE "CHARLOTTE" 

(299 F. 595) 

CIRCUIT COURT OF APPEALS, SECOND CIRCUIT 

April 28, 1924 

Before HOUGH, MANTON, and MAYER, Circuit 
Judges. 

Per Curiam: This is the same litigation which gave 
rise to the proceedings in Ex parte New York No. 1 , 256 
U. S. 491. 

The Charlotte, owned by claimants herein, was by a 
document called a charter and lease, in the employment 
of the State of New York and used by the authority of 
that State in towing on the Erie Canal. Libelant asserts 
by this suit in rem that she was negligently navigated to 
the injury of his barge or canal boat. The question here 
is whether this action can be maintained under the author- 

4 The U. S. S. Hisko, U. S. S. Roanoke, and U. S. S. Pocahontas (Circuit Judge Manton 
S. D. N. Y.) (March 17, 1921, unreported opinion annexed to brief); 

The U. S. S. Newark (District Judge Knox, S. D. N. Y.) (March 18, 1921, unreported 
opinion annexed to brief); 

The U. S. S. Sixaola (District Judge Mayer, S. D. N. Y.) (April 21, 1921, unreported 
opinion annexed to brief); 

The F. J. Luckenbach, 267 Fed. 931; The Liberty, now before this court; The Carolinian, 
270 Fed. 1011, also now before this court. 

Also: The Florence H. t 248 Fed. 1012; The Gloria, 267 Fed. 929; The City of Philadel- 
phia, 263 Fed. 234. 

Counsel also cites: The Tampico, 16 Fed. 491; Thompson Navigation Co. v. City of 
Chicago, 79 Fed. 984; Johnson Lighterage Co., 231 Fed. 365; The Attualita, 238 Fed. 909; 
The Luigi, 230 Fed. 493; The Othello, 5 Blatchf. 343. 



50 vessels: ownership, charter, and service 

ity of the case above cited, of The Queen City {Ex parte 
New York No. 2) 256 U. S. 503, and The Western Maid, 
257 U. S. 419. 

[1] Nothing need be added to the opinion of the court 
below in respect of its holding that the charter and lease 
of the Charlotte existing at the time of the alleged negli- 
gence was a demise of the vessel and made the State of 
New York her owner pro hac vice. 

state™? 11 New ^ e ** rst case c ^ e( * above shows that no action in 
York. personam would lie against the State of New York in the 

admiralty for the damage complained of; The Queen City 
shows that if the Charlotte had been owned absolutely 
by the State, no action in rem could have been maintained 
against the vessel; and the Western Maid shows that in 
respect of the sovereign United States there is no differ- 
ence between a vessel owned outright and one owned 
pro hac vice by the sovereign. 

[2] This reduces the question at bar to an inquiry 
whether there is any difference between the sovereignty 
of the United States and that of the State of New York 
in so far as its immunity from suits of this kind is con- 
cerned. 

The general nature of a State's sovereignty has been 
too often set forth to require additional exposition now; 
it is summarily stated with due citation of authorities in 
36 Cyc. 828. 

It is thought that no State has been more insistent 
upon the extent of its sovereign powers than the State of 
New York, and that sovereignty has recently received 
full recognition in Marshall v. People of the State of New 
York, 254 U. S. 380, where all the New York cases are 
cited. We think it unnecessary to do more than state 
our acceptance of the proposition that in the absence of 
any diminution of power in this regard by the Constitu- 
tion of the United States, the State of New York can 
neither be sued in personam for the tort complained of, 
nor can its property, whether absolute or owned pro hac 
vice, be made to respond for the same tort. In other 
words, the doctrine of Western Maid, supra, applies to and 
governs this case. 

Decree affirmed, with costs. 



THE PORTO ALEXANDRE 51 

THE "PORTO ALEXANDRE" 

([1920], P. 30) 

Admiralty — Public vessel — Immunity from process of arrest — Trad- 
ing by public vessel 

A vessel owned or requisitioned by a sovereign independent state 
and earning freight for the state, is not deprived of the 
privilege, decreed by international comity, of immunity 
from the process of arrest, by reason of the fact that she 
is being employed in ordinary trading voyages carrying 
cargoes for private individuals. 

The Parlement Beige (1880) 5 P. D. 197 considered and applied. 

Appeal from a decision of Hill J. setting aside the 
writ in rem and all subsequent proceedings against the 
steamship Porto Alexandre. 

The Porto Alexandre, formerly the German-owned 
steamship Ingbert, a vessel of 2,699 tons gross, by a 
decree of the Portuguese prize court of January 30, 1917, 
was adjudged a lawful prize of war. She had previously 
been requisitioned by the Portuguese Government and 
handed over to the Commission of Services of Transports 
Maritims and was being employed in ordinary trading 
voyages earning freight for the Government. 

In September, 1919, she loaded a cargo of cork shavings 
for carriage to Liverpool under a bill of lading from which 
it appeared that the cargo was shipped by and consigned 
to the Portuguese Import and Export Co., (Ltd.). 
On September 13, when in the Crosby Channel at the 
entrance to the Mersey, the vessel got aground and 
salvage services were rendered to her by three Liverpool 
tugs, the Nora, Expert, and Torfreda. On September 16 
a writ in rem was issued on behalf of the owners, masters, 
and crews of these tugs in respect of the services against 
" the owners of the Portuguese steamship Porto Alexandre 
her cargo and freight." On September 24 the solicitors 
for the defendants accepted service of the writ and 
undertook to appear on behalf of the cargo owners, and 
on September 25 entered appearance " under protest" 
for the owners and freight. On October 2 a motion was 
set down to set aside the writ and all subsequent pro- 
ceedings on the ground that the Porto Alexandre and the 
freight "were and are the public national property of 
and/or requisitioned by and in the possession and public 
use and service of the Portuguese Government." The 
motion came before Hill, J., on October 20 and 27, 1919, 
and was supported by a communication from the 



52 vessels: ownership, charter, and service 

Portuguese charge d'affaires to Lord Curzon, the 
Secretary of State for Foreign Affairs, who in turn com- 
municated it to the learned judge, that the Porto Alexandre 
was "a state-owned vessel belonging to the Govern- 
ment of the Portuguese Republic." 

Hill, J., in giving judgment said that he had arrived at 
his decision with the greatest reluctance. Upon the facts 
he was prepared to find, if it were necessary, that the 
Porto Alexandre was being used in ordinary commerce, 
and that the only interest of the Portuguese Government 
was in the earning of freight. But in his view the law 
as laid down in The Parlement Beige 5 was that a sovereign 
state could not be impleaded either by being served in 
personam or indirectly by proceedings against its prop- 
erty; and if that were the principle it mattered not how 
the property was being employed. His lordship con- 
tinued: "I think, therefore, that this motion succeeds 
upon the ground that it is established that this ship was 
the property of the Portuguese Government at the time 
of arrest and is now its property. It therefore follows 
that so far as the ship and freight are concerned the writ 
and all subsequent proceedings must be set aside, but the 
writ and all subsequent proceedings so far as the cargo 
is concerned will remain good. I have already, in pre- 
vious cases, pointed out what I conceive to be very strong 
reasons why it is undesirable that cases should be with- 
drawn, as this is being withdrawn, from the courts, but I 
have only to assert now what I conceive to be the law." 
The plaintiffs appealed. 
thta^i e iants for November 10. C. R. Dunlop, K. C, and J. B. Aspinall 
for the appellants. Although a sovereign ruler can not 
be impleaded even in respect of private transactions, 
international comity does not extend the same immunity 
to the property of states unless employed in the public 
service. The decision of the court of appeal in The Parle- 
ment Beige 5 no doubt qualifies to some extent the views 
of Sir Robert Phillimore as expressed in the court below 
in that case 6 and in The Charkieh. 7 But the court of 
appeal, in reversing Sir Robert Phillimore, took a differ- 
ent view of the facts, and the case is not an authority for 
the proposition that a foreign state-owned merchant ship 

« 5 P. D. 197. 6 (1879) 4 P. D. 129. 7 (1873) L. R. 4 A. & E. 59, 74. 



SALVAGE 53 

engaged on an ordinary mercantile voyage is immune 
from the process of arrest. The Parlement Beige was a 
mail boat, and although carrying passengers and cargo 
this was merely ancillary to her real employment, which 
was that of carrying the Belgian State mails. The cor- 
rect view was that stated by Marshall, C. J., in an old 
American authority ( U. S. Bank v. Planters 7 Bank 8 ), that 
"when a Government becomes a partner in any trading 
company it devests itself, so far as concerns the transac- 
tions of that company, of its sovereign character." [ The 
Prins Frederik 9 was also referred to.] 

D. Stephens, K. C, and A. W. Grant for the respond- 
ents were not called on. 

Bankes, L. J.: This is an appeal from a decision of 
Hill, J., who made an order that the writ and warrant for 
arrest, and all subsequent proceedings against the Porto 
Alexandre and freight, be set aside, but the proceedings 
against the cargo should stand. The learned judge was 
only concerned with the question of the ship, and this 
appeal has only reference to the ship. 

The vessel in question was on a voyage from Lisbon to 
Liverpool, and she ran aground in the Mersey, and three 
tugs were engaged to get her off. An action was brought, 
and the ship was arrested in respect of the services ren- 
dered to her by these tugs. The application which the 
learned judge granted was founded upon the contention 
that the vessel was the property of a sovereign state, the 
Kepublic of Portugal, and on that ground, that she was 
exempt from arrest. The conclusion of fact at which the 
learned judge arrived was that it had been established 
that the ship was the property of the Portuguese Govern- 
ment at the time of the arrest, and is still their property, 
and on that ground he made the order. 

It is now contended that it is not sufficient for a sover- 
eign or a sovereign state to allege that a vessel is the 
property of such sovereign or sovereign state, and that 
the allegation must go further and say the vessel is 
employed in the public service or on public service. 

The facts with regard to the vessel are as follows : She , statement of 
was originally a German merchant vessel, and in August, 
1916, she was requisitioned by the Portuguese Government. 
On August 11 what is called a passport was issued, which 
authorized the employment of the vessel and contains 



facts. 



8 (1824) 9 Wheat. 904, 907. » (1820) 2 Dods. 451. 



54 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

notes upon it, indicating that during the period that the 
vessel was at the service of the Portuguese Government, 
for which she was requisitioned, her port of register 
should be Lisbon. There is also an indorsement on the 
passport stating that on January 30, 1917, she was ad- 
judged a lawful prize of war. Mr. Dunlop has pointed 
out that the statement that she was adjudged a lawful 
prize of war leaves it doubtful whether she has become 
the actual property of the Portuguese Government, or 
whether she was merely detained pending the conclusion 
of peace. It would rather appear that the latter is the 
proper conclusion, because there is an affidavit by the 
Portuguese vice consul at Liverpool, who says that the 
vessel is, and has been, requisitioned by the Portuguese 
Government for the service of the State, and is employed 
under the orders of the Government. There is a further 
statement in writing by the Portuguese consul at Liver- 
pool, in which he says in reference to this particular 
voyage that the freight on the cargo was paid before 
shipment and belongs solely and entirely to the Portu- 
guese Government. In addition to that, there is a letter 
from the Portuguese charge d'affaires, in which he states 
definitely that the Porto Alexandre is a public service 
vessel belonging to the Portuguese Government. 

There is no reason to doubt the accuracy of the state- 
ments that have been made on affidavit in this case — 
that the vessel has been requisitioned under the order of 
the Portuguese Government, and that on the particular 
voyage she was carrying freight for that Government » 
Mr. Dunlop, however, contends that is not sufficient, 
because it is shown she was engaged in what he says was 
an ordinary commercial undertaking, as an ordinary 
trading vessel carrying goods for a private individual or 
a private company. The question is, whether it is pos- 
sible in the circumstances of this case to distinguish it 
from The Parlement Beige, 10 which was a decision of this 
court, and is binding upon us. 

I gather from the judgment of Hill, J., and from what 
has been said by learned counsel, that this question is 
becoming one of growing importance. In the days when 
the early decisions were given, no doubt what were 
called Government vessels were confined almost entirely , 
if not exclusively, to vessels of war. But in modern 
times sovereigns and sovereign states have taken to 

>p 5 P. D. 197. 



THE PARLEMENT BELGE 55 

owning ships, which may to a still greater extent be em- 
ployed as ordinary trading vessels engaged in ordinary 
trading. That fact of itself indicates the growing im- 
portance of the particular question, if vessels so employed 
are free from arrest. 

The function of this court in this particular case is to 
decide whether it is covered by The Parlement Beige. 7 I 
think it is, and it is therefore not neccessary or desirable 
that the court should enter upon a discussion of the 
wider question at this stage, or consider the importance 
of other views that may be taken. There is very little 
difference between the material facts in The Parlement 
Beige and in the present case, and in my opinion The 
Parlement Beige is an authority which covers the 
present case. It is quite true that in many of the 
earlier cases the claim put forward, with regard to a 
particular ship, was that she was on public service and 
employed in the public service, and no doubt the state- 
ment so made was applicable to the particular case, and 
was made because it was applicable to the particular 
case, and the judgments were delivered in reference to 
the facts so stated. But in this case the court is bound 
by the decision in The Parlement Beige and the appeal 
must be dismissed with costs. 

Warrington, L. J. : I am of the same opinion. I think 
the case is clearly covered by the decision in The Parlement 
Beige n , and, that being so, we have no alternative but to 
dismiss the appeal. 

In the present case, the facts proved appear to me to 
amount to this: It is first proved that the ship in question 
is a public vessel, the property of the Portuguese Govern- 
ment ; next it is proved by the affidavits that it is in their 
possession for the service of the State; and, thirdly, it is 
proved that it is employed under the orders of the Govern- 
ment. There is one passage in the judgment of Brett, 
L. J., in The Parlement Beige in which he is expressing 
what he considers to be the result of the judgment in 
Briggs v. Light Boats 12 , an American case, of which he 
obviously approves and on which he founds his own con- 
clusion. He says: " The ground of that judgment is that 
the public property of a Government in use for public 
purposes is beyond the jurisdiction of the courts of either 

» 5 P. D. 197, 213, 217. U (18G5) 93 Mass. 157. 



56 vessels: ownership, charter, and service 

. its own or any other state, and that ships of war are 
beyond such jurisdiction, not because thay are ships of 
war, but because they are public property. It puts all 
the public movable property of a state, which is in its 
possession for public purposes, in the same category of 
immunity from jurisdiction as the person of a sovereign, 
or of an ambassador, or of ships of war, and exempts it 
from the jurisdiction of all courts for the same reason, 
viz, that the exercise of such jurisdiction is inconsistent 
with the independence of the sovereign authority of the 
state." And then again, when he is summing up the 
principle which he thinks is to be deduced from all the 
cases, he says: u As a consequence of the absolute inde- 
pendence of every sovereign authority and of the inter- 
national comity which induces every sovereign state to 
respect the independence of every other sovereign state, 
each and every one declines to exercise, by means of any 
of its courts, any of its territorial jurisdiction over the 
person of any sovereign or ambassador of any other state, 
or" — and these are the material words — "over the public 
property of any state which is destined to its public use, 
or over the property of any ambassador, though such 
sovereign, ambassador, or property be within its territory, 
and, therefore, but for the common agreement, subject to 
its jurisdiction." 

Whatever may be the actual use to which this ship is 
put, I think the evidence is quite sufficient to show that it 
is the property of the state, and is destined to public use; 
and, that being so, the case seems to me to come exactly 
within the principle of the judgment in The Parlement 
Beige 13 , with the result which I indicated at the beginning 
of my judgment. 

Scrtjtton, L. J. : In this case the Porto Alexandre came 
into the Mersey, got on to the mud, and was salved by 
three Liverpool tugs. On arresting her to obtain security 
for the payment of their salvage, the Portuguese Republic, 
through the Portuguese charge d'affaires, put forward a 
statement that she was a public vessel of the Portuguese 
Republic, and was therefore exempt from any process in 
England. Accordingly the defendants moved to set 
aside the writ and arrest. Hill, J., in the admiralty court 
granted the application, and the plaintiffs' appeal to this 
court. 

13 5 P. D. 197. 



STATE IMMUNITY 57 

Now, this State and other States proceed in their 
jurisprudence on the assumption that sovereign States 
are equal and independent, and that as a matter of inter- 
national courtesy no one sovereign independent State 
will exercise any jurisdiction over the person of the 
sovereign or the property of any other sovereign State; 
and now that sovereigns move about more freely than 
they used to, and do things which they used not to do, 
and now that States do things which they used not to 
do, the question arises whether there are any limits to 
the immunity which international courtesy gives as be- 
tween sovereign independent States and their sovereigns. 
I think it has been well settled first of all as to the sov- 
ereign that there are no limits to the immunity which immunity, 
he enjoys. His private character is equally free as his 
public character. If he chooses to come into this coun- 
try under an assumed name and indulge in privileges 
not peculiar to sovereigns, of making promises of mar- 
riage and breaking them, the English courts still say on 
his appearing in his true character of sovereign and 
claiming his immunity, that he is absolutely free from 
the jurisdiction of this court. That is the well-known 
case of Mighell v. Sultan of Johore. 14 It has been held, 
as Mr. Dunlop admits, in The Parlement Beige 15 that 
trading on the part of a sovereign does not subject him 
to any liability to the jurisdiction. His ambassador is 
in the same position; an ambassador, coming here as an 
ambassador of the sovereign may engage in private 
trading, but it has been held that his immunity still 
protects him even from proceedings in respect of his 
private trading. Jervis, C. J., in Taylor v. Best, 16 
said: "* * * if the privilege does attach, it is not, 
in the case of an ambassador or public minister, for- 
feited by the party's engaging in trade, as it would, 
by virtue of the proviso in the 7 Anne, chapter 12, 
section 5, in the case of an ambassador's servant. If 
an ambassador or public minister, during his residence 
in this country, violates the character in which he is 
accredited to our court by engaging in commercial trans- 
actions that may raise a question between the govern- 
ment of this country and that of the country by which 
he is sent; but he does not thereby lose the general 

"[1894] 1 Q. B. 149. » 5 P. D. 197. » (1854) 14 C. B. 487, 519. 

33474—251 5 



58 vessels: ownership, charter,, and service 

privilege which the law of nations has conferred upon 
persons filling that high character, the proviso in the 
statute of Anne limiting the privilege in cases of trading 
applying only to the servants of the embassy." There 
being no limitation in the case of the sovereign, and no 
limitation in the case of the ambassador, is there any 
limitation in the case of the property? Mr. Dunlop has 
argued before us that in the case of property of the 
State there is a limitation, and that — as I understand 
him — if the property is used in trading, that can not be 
for the public service of the State. That is not the way 
in which he expressed it, but it appears to me to be the 
proposition which emerges from his argument. 

We are concluded in this court by the decision in The 
Parlement Beige. 11 Sir Robert Phillimore took the view 
that trading with the property of a state might render 
that property liable to seizure: but the court of appeal in 
The Parlement Beige overruled the views of Sir Robert 
Phillimore, as I understand them. The principle then 
laid down has been recited by the other members of the 
court. Brett, L. J., said: "As a consequence of the abso- 
lute independence of every sovereign authority and of the 
international comity which induces every sovereign state 
to respect the independence of every other sovereign state, 
each and every one declines to exercise by means of any 
of its courts, any of its territorial jurisdiction over the 
person of any sovereign or ambassador of any other state, 
or over the public property of any state which is destined 
to its public use." One of the reasons given seems to me 
conclusive: the moment property is arrested in the 
admiralty court a proceeding is instituted against the 
person, and the person is compelled to appear if he wants 
to protect his property, and by seizing his property the 
personal rights of the sovereign or the personal rights of 
the state are interfered with. The position seems to me 
to be very accurately stated in the seventh edition of 
Hall's International Law, at page 211, where, after dealing 
with warships and public vessels so called, Mr. Hall goes 
on to deal with other vessels employed in the public 
service and property possessed by the state within foreign 
jurisdiction, and says: "If in a question with respect to 
property coming before the courts a foreign state shows 
the property to be its own, and claims delivery, juris- 
ts 5 P. D. 197, 217. 



THE TERVAETE 59 

diction at once fails, except in so far as it may be needed 
for the protection of the foreign state." 

I quite appreciate the difficulty and doubt which 
Hill, J., felt in this case, because no one can shut his eyes, 
now that the fashion of nationalization is in the air, to 
the fact that many states are trading, or are about to 
trade, with ships belonging to themselves; and if these 
national ships wander about without liabilities, many 
trading affairs will become difficult; but it seems to me 
the remedy is not in these courts. The Parlement Beige 
excludes remedies in these courts. But there are prac- 
tical commercial remedies. If ships of the State find 
themselves left on the mud because no one will salve them 
when the State refuses any legal remedy for salvage, 
their owners will be apt to change their views. If the 
owners of cargoes on national ships find that the ship 
runs away and leaves them to bear all the expenses of 
salvage, as has been done in this case, there may be 
found a difficulty in getting cargoes for national ships. 
These are matters to be dealt with by negotiations 
between governments, and not by governments exercis- 
ing their power to interfere with the property of other 
States contrary to the principles of international courtesy 
which govern the relations between independent and 
sovereign States. While appreciating the difficulties 
which Hill, J., has felt, I think it is clear that we must, 
in this court, stand by the decision already given, and the 
appeal must be dismissed. 



THE "TERVAETE" 

[1922] P. 259] 

Shipping — Collision — Foreign state-owned vessel — Maritime lien — 
Vessel sold into private ownership — Jurisdiction — Immunity from 
arrest 

Damage occasioned by collision with a foreign state-owned vessel 
does not impose a maritime lien upon the vessel, and if the 
vessel be subsequently sold into private ownership she is 
not then liable to arrest in an action in rem. 

Decision of. Duke, P., reversed. 

Appeal from a decision of Sir Henry Duke, P., sitting 
in admiralty, dismissing a motion to set aside a writ in 
an action in rem,. 



60 vessels: ownership, charter, and service 

The appellants, defendants in the action, were the 
owners of the steamship Tervaete; the respondents were 
the owners of the steamship Lynntown. 

The action was brought to recover damages in respect 
of a collision which took place between the Lynntown, a 
British vessel, and the Tervaete on May 18, 1920, in the 
port of Bonanza, on the Guadalquivir River. At that 
time the Tervaete belonged to the Government of the 
King of the Belgians and was being run as a coal ship 
for public purposes. After the collision she was sold by 
the Belgian Government into private ownership, and at 
the time of the commencement of the present proceedings 
she was the property of the Societe Anonyme Beige 
d'Armement et de Gerance. The plaintiffs issued and 
served their writ on January 10, 1922, the Tervaete being 
then in Barry Dock; but they refrained from arresting 
her in consideration of an undertaking by the solicitors 
for the defendants to enter an appearance and put in 
bail. Appearance was entered under protest, and a 
motion was then set down by the defendants to discharge 
the solicitors' undertaking and to set aside the writ. 

Duke, P., held that a foreign state by its authorized 
agents could impose a lien upon one of its public ships, 
and that the lien might be enforced if it could be done 
without directly or indirectly impleading the foreign 
state. He was of opinion that the maritime lien in the 
present case was capable of being enforced without any 
assertion of jurisdiction over the Belgian State or its 
property, and accordingly dismissed the motion. The 
defendants appealed. 
Argument for Bateson, K. C, and E. Aylmer Digby for the appellants : 
The court had no jurisdiction to entertain the action. 
As a state-owned vessel is immune from arrest, no mari- 
time lien can attach to her, and if it never attached it 
can not revive when the vessel is sold into private owner- 
ship. A maritime lien does not attach in every case of 
collision — e. g., collisions caused through the barratrous 
acts of the master or, before the pilotage act, 1913, by 
the negligence of a compulsory pilot, do not give a right 
of action against the owners : See also The Tasmania 17 
as to the position of vessels under charter. 

[Scrutton, L. J. This collision took place in a Spanish 
port; before the admiralty court act of 1861 the court 
would not have entertained such an action: The Ida. 18 ] 

" (1888) 13 P. D. 110. '8 (1860) Lush. 6. 



MARITIME LIEN 61 

No. It has, however, been held that Alexandria and 
Algiers are "on the high seas," because they are not 
within the body of a country: The Mecca.™ 

A maritime lien is not a lien at all; it is a claim to Maritime lien. 

priority involving an action in rem and therefore impleads 

the owner of the res. It was defined in The Bold Buc- 

cleugh 20 as u a claim or privilege to be carried into effect 

by legal process;" and in Currie v. Mc Knight 2l Lord 

Watson described it as a remedy against the corpus 

of the offending ship ; see also The Dictator 22 and The 

Ripon City, 23 where the nature of a maritime lien was 

fully discussed . The collision with the Lynntown gave her 

owners no claim against the then owners of the Tervaete 

which could be carried into effect by legal process; and 

Brett, L. J., said in The Parlement Beige 24 that u the 

property can not be sold as against the new owner, if 

it could not have been sold as against the owner at the 

time." Similarly in The Castlegate 25 Lord Watson said 

that the general principle of maritime law was that 

" inasmuch as every proceeding in rem is in substance 

a proceeding against the owner of the ship, a proper 

maritime lien must have its root in his personal liability;" 

and Sir Francis Jeune in The Utopia 26 made similar 

observations. The president, therefore, was wrong in 

holding that there was a maritime lien capable of being 

given effect to without impleading the foreign state. 

A dormant maritime lien attaching to a state-owned 

vessel necessarily diminishes the value of the state's 

property. A maritime lien is, in the words of Barnes, J., 

in The Ripon City, 23 a jus in re aliena, and to allow such 

a lien to attach at all would be a subtraction from the 

absolute property of the owner. The cases in which 

there have been cross claims against a foreign sovereign 

or sovereign states — e. g., The Newbatile 21 — stand in a 

different category; for if a foreign sovereign sues in a 

British court he submits himself to the jurisdiction of 

the court, and the court naturally will see that justice 

is done. If, therefore, there is a counter-claim or cross 

action the court, if necessary, will order the foreign 

IB [1895] P. 95. 24 (1880) 5 P. D. 197, 218. 

20 (1851) 7 Moo. P. C. 267, 284. 2* [18U3] A. C. 38, 52. 

21 [1897] A. C. 97, 10G. 26 [1893] A. C. 492. 

22 [1892] P. 304. 27 ( 18 85) io P. D. 33. 

23 [1897] P. 226. 



62 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

sovereign to give security: The Newbattle 27 . Wliilo 
there is no English authority on the question at issue, 
it arose recently in the United States, and the Supreme 
Court decided by a majority that no maritime lien 
attached in the case of collision with a Government- 
owned vessel: United States of America, Owners of the 
Western Maid v. Auxiliary Schooner Liberty and Steam- 
ship Carolinian. 28 

[Reference was also made to The Aline 29 and, on the 
position of requisitioned vessels, The Broadmayne 30 ] 
Argument for C. R. Dunlop, K. C. and Dumas for the respondents: 

the respondents. r ' . _ * . 

I here are two questions involved. Has the admiralty 
court jurisdiction to entertain the action at all; and if it 
has, is there any ground why it should refuse to do so? 
As regards the locus, there can be no question that the 
admiralty court act, 1861, gives the court jurisdiction 
over cases of collision in foreign inland waters, whether 
the vessels concerned are British, The Diana; 31 or 
foreign, The Courier. 32 The argument of the appellants 
confuses the position of the British Crown, which can 
do no wrong, cf. Tobin v. The Queen; 3 with the position 
of a foreign sovereign, in favor of whom there is no such 
axiom. A foreign sovereign is not incapable of commit- 
ting a tort. In Mighell v. Sultan of Johore M it was not 
suggested that the Sultan could not create against himself 
a good cause of action, nor in South African Republic v. 
La Compagnie Franco-Beige du Chemin de Fer du Nord 35 
that the Republic could not commit a libel. Also, a 
foreign sovereign who is plaintiff is liable to have a count- 
erclaim or cross-action brought against him: The New- 
battle 27 

[Bankes, L. J. In The Newbattle 27 the court said it 
could not order the vessel to be seized.] 

No, but the foreign sovereign was compelled to give 
security to answer the cross action: see also Strousberg 
v. Republic of Costa Rica. 3Q In Magdalena Steam Navi- 
gation Co. v. Martin 37 in which the position of an ambas- 
sador was considered, the case appears to have proceeded 
on the footing that the remedy was in suspension. 

[Scrutton, L. J., referred to Musurus Bey v. Gadban. 3H ] 

» (1885) 10 P. D. 33. 33 (!864) 33 L. J. (C. P.) 199. 

» [257 U. S. 419]. 34 (1894) 1 Q. B. 149. 

»• (1839) 1 W. Rob. 111. 35 (1897) 2 Ch. 487. 

30 [1916] P. 54. 36 (1880) 44 L. T. 199. 

3» (1862) Lush. 539. 37 Q859) 2 E. & E. 94. 

" (1862) Lush. 541. 38 (i 8 94) 2 Q. B. 352. 



JURISDICTION 6.^ 

On the second point, namely, whether the Court ought 
to exercise jurisdiction, it will do so unless a claim of 
sovereignty is asserted, and the claim must be asserted 
by the foreign sovereign or some one on his behalf. It 
is not suggested by the secretary to the Belgian ambassa- 
dor that the Belgian Government objects to the action 
against the Tervaete; the affidavit in support of the mo- 
tion to set aside the writ is made by the Belgian vice 
consul at Cardiff acting on behalf of the appellants, a 
commercial firm. The president was right in his con- 
clusion that the maritime lien could be enforced without 
impleading the foreign government. The date when the 
action is brought and not the date of the contract or tort 
is the material date: Munden v. Duke of Brunswick.™ 
The rule in The Parlement Beige 40 is not infringed by the 
present action; and the dictum of Brett, L. J., in that 
case, relied on by the appellants, is obiter, and further 
had reference to a different state of facts — the lord justice 
was discussing whether a lien could attach to a ship in 
the hands of a subsequent owner when there was no negli- 
gence on the servants of the owners at the time of the 
collision. 

[Reference was also made to The Ticonderoga 41 and 
The Porto Alexandre. 42 ] 

Digby in reply: The fallacy in the respondents' 
case is their contention that there is a distinction be- 
tween the case of an action against the British Crown 
and an action against a foreign sovereign or state, and 
that in the latter case the court merely declines to 
exercise jurisdiction, while in the former it is admitted 
that the court has no jurisdiction to entertain the action 
at all. Both cases stand on the same footing. There 
is no jurisdiction in either case: See The Constitution, 43 
where the defendants being a foreign state it was held 
that the court had no jurisdiction to entertain the 
action: See also the report of The Parlement Beige in 
the admiralty court, 44 where the attorney general's 
protest is set out, from which it appears that the point 
taken was absence of jurisdiction. 



»» (1847) 4 C. B. 321; 10 Ad. & E. 656. « [1920] P. 30. 

« 5 P. D. 197, 218. a (1879) 4 P. D. 39. 

« (1857) Swa. 215. H 4 P. D. 129, 131. 



64 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

facts atement ° f July 12. The following judgments were read: 

Bankes, L. J.: The material facts lie in a small 
compass. In May, 1920, a collision occurred between 
the respondents' vessel, the Lynntown, and the Tervaete, 
which at that time was the property of the Belgian 
Government and employed on Government service. 
Subsequently to the collision the Belgian Government 
transferred the Tervaete to a private owner, and after 
she had been so transferred she came into Barrv Dock. 
The respondents contend that as a result of the collision 
a maritime lien attached to the Tervaete, which, now 
that she is private property and is found within the 
jurisdiction, they are entitled to enforce by proceedings 
in rem in the admiralty court of this country. The 
present proceedings were taken by the respondents 
to test the correctness of that contention. The re- 
spondents do not contest the proposition that as a 
general principle of maritime law, in the case of a claim 
for damage arising out of collision, a proper maritime 
lien must have its root in the personal liability of the 
owner, or of the person for this purpose in the position 
of owner. The subject is very fully discussed by Gorell 
Barnes, J., in The Ripon City, 45 in which he gives a defini- 
tion of maritime lien in language which is, I think, of 
assistance in this case. He says: "Such a lien is a 
privileged claim upon a vessel in respect of service 
done to it, or injury caused by it, to be carried into 
effect by legal process. It is a right acquired by one 
over a thing belonging to another — a jus in re aliena. 
It is, so to speak, a subtraction from the absolute property 
of the owner in the thing. This right must, therefore, 
in some way have been derived from the owner either 
directly or through the acts of persons deriving their 
authority from the owner." The respondents further 
do not dispute that, so long as the Tervaete remained 
the property of the Belgian Government, no proceedings 
could be taken either in personam or in rem in respect 
of the damage done to their vessel by the collision. 

The contention upon which the respondents relied in 
the court below, and which was accepted by the presi- 
dent, was that the fact that no such proceedings could 
be taken was not due to an absence of any liability on the 
part of the Belgian Government for the negligence of 

« [1897], pp. 226, 242. 



LIABILITY OF FOREIGN SOVEREIGN 65 

their servants which brought about the collision, but to 
the rule introduced by international comity which pro- 
hibited the taking of any proceedings to enforce that 
liability. As a further contention founded upon the one 
just mentioned, it was said that a maritime lien did at- 
tach to the Tervaete as a consequence of the collision, 
and though it remained, as it were, dormant and unen- 
forceable during the ownership of the vessel by the Bel- 
gian Government, it became enforceable when the vessel 
passed into private ownership. These contentions raise 
the question whether a maritime lien ever did attach to 
the vessel at a time when- she was owned by the Belgian 
Government. This is quite a different case from a case 
where a maritime lien attached to a vessel at a time when 
she was privately owned, and which vessel afterwards 
passed into government ownership, and then into pri- 
vate ownership again. It may well be that in such a 
case the maritime lien is dormant during the period of 
government ownership. The present case is quite dis- 
tinct from that, and involves the question whether a 
maritime lien ever attached to the Tervaete at all. 

I think it may be conceded for the purposes of the argu- ei ^ ia sovere? f f ° r 
ment that the fact that a sovereign or a sovereign powei 
can not be proceeded against in the courts of a foreign 
country does not exclude all idea of liability for a breach 
of contract, or for a tort, in the sense that under no cir- 
cumstances can the sovereign or the sovereign state do 
wrong. The rule that where a foreign sovereign sues in 
the courts of this country, proceedings may be taken 
against him in mitigation of the relief claimed by him, 
would be of no value except upon the assumption that 
claims for breaches of contract, or for torts, might be 
established and set off in mitigation. In Imperial Japa- 
nese Government v. P. cfc 0. Co., 46 the whole discussion 
as to the court in which proceedings might be taken 
would have been avoided had the law been that the Em- 
peror of Japan could not be liable for damages resulting 
from the collision of his vessel with that of the defendants. 
The point was, however, not suggested in that case. In 
The Newbattle 47 it was assumed that the King of the 
Belgians might be held liable in damages in the cross 
cause for the negligence of those in charge of his vessel, 
the Louise Marie. The fact that the immunity of an 

« [1895] A. C. 044. <M0 P. D. 33. 

33474— 25-t 6 



66 VBSSELS: OWNERSHIP, CHARTER, AND SERVICE 

ambassador from process in the courts of this country 
in respect of debts contracted while he was ambassador 
lasts during the time during which he is accredited to the 
sovereign and for such a reasonable period after he has 
presented his letters of recall to enable him to wind up 
his official business and to prepare for his return home, 
which is the law as laid down in Musurus Bey v. Gad- 
bail, 48 points also in my opinion to the same conclusion. 
In the numerous cases such as South African Republic 
v. La Compagnie Franco-Beige du Chemin de Fer du 
Nord, 49 in which jthe question arose of enforcing cross 
claims in actions by sovereigns or sovereign states, it 
appears to me to be assumed that the cross claims are in 
respect of breaches of conduct or of tort actually com- 
mitted, and for which the sovereign or the sovereign 
state would have been responsible but for the immunity 
from process which he or they enjoyed. 

In spite of the fact that so far I have accepted the 
arguments of the respondents in support of the judgment 
of the President, I am unable to agree with his final con- 
clusion, and I do so upon a point to which his attention 
does not appear to have been specially directed. The 
point is founded partly upon the effect upon the property 
of the sovereign state if a maritime lien attached to the 
Tervaete as alleged, and partly upon a consideration of 
the nature of a maritime lien itself. If the judgment of 
the president is right, and the maritime lien attached to 
the Tervaete, the value of the vessel to the Belgium 
Government must necessarily have been affected; how 
seriously of course depends upon the amount of the 
respondents' claim. A vessel to which a maritime lien 
extends for any substantial amount must necessarily be 
worth less in the market than if she was free from any 
lien. In The Bold Buccleugh 50 Sir John Jervis, when 
dealing with the question of a maritime lien, adopts 
Lord Tenterden's definition of it, as a claim or privilege 
to be carried into effect by legal process; and he then 
goes on to say that a maritime lien is the foundation of 
the proceedings in rem, a process to make perfect a right 
inchoate from the moment the lien attaches. In Currie 
v. Mc Knight 51 Lord Watson speaks of a maritime lien 
as a remedy against the corpus of the offending ship. 

« [1894] 2 Q. B. 352. «° 7 Moo. P. C. 267, 284. 

<» [1898] 1 Ch. 190. « [1897] A. C. 97, 106. 



PUBLIC PROPERTY LIABILITY G7 

Whether a maritime lien is properly to be regarded as a 
step in the process of enforcing a claim against the owners 
of a ship, or as a remedy or partial remedy in itself, or as 
a means of securing a priority of claim, it can not, in my 
opinion, consistently with the rule of immunity laid 
down by the law of nations, be attached to a vessel 
belonging to a sovereign power and being used for public 
purposes. To allow such a lien to attach would be to use 
Gorell Barnes, J.'s, language in The Ripon City. 52 to 
create a jus in re aliena, a subtraction from the absolute 
property of the sovereign state. 

I may here refer to Musurus Bey v. Gadban 53 , in which 
the immunity from process of an ambassador was con- 
sidered. It was argued in that case that it was permis- 
sible to issue a writ against an ambassador in order to 
prevent the running of the statute of limitation, pro- 
vided no further step of serving or attempting to serve 
was taken. The court, taking the same view as was 
taken in Magdalena Steam Navigation Co. v. Martin?* 
refused to accept the contention. Davey, L. J., said: 
"With regard to the first" (that is the contention I 
have just referred to) "it is in my opinion sufficient to 
refer to the third section of 7 Anne, chapter 12, which 
makes all writs and processes, whereby the person of 
any ambassador or other public minister may be arrested 
or imprisoned, or his goods and chattels may be dis- 
trained, seized, or attached, utterly null and void. It 
has been decided in Magdalena Steam Navigation Co. v. 
Martin 54 that this section applies not only to writs of 
execution against the property or person of a privileged 
person, but also to writs which lead up to and would 
in ordinary course have the consequence of attaching 
his goods or person. If so, I am of opinion that a writ 
of summons in an action is of that character, and that 
the effect of the statute (which is said to be declaratory 
only of the common law) is to make such a writ void 
and of no effect. Mr. Pollard is quite right in saying 
that the writ had been served in the Magdalena case, 
and that all that it was necessary to decide was that that 
service was bad. But the grounds upon which the 
decision was based in Lord Campbell's judgment go 
beyond that point, and in my opinion show a total want 
of jurisdiction of the court to entertain the action at all. 

52 [1897], p. 226. «3 (1894) 2 Q. B. 352, 360. "2 E. & E., 94, 



68 vessels: ownership, charter, and service 

Lord Campbell, at page 111, states the principle to be 
that for all juridical purposes an ambassador is supposed 
still to be in his own country, and he concluded his 
judgment in these words: 'It certainly has not hitherto 
been expressly decided that a public minister duly ac- 
credited to the Queen by a foreign state is privileged 
from all liability to be sued here in civil actions; but we 
think that this follows from well-established principles.' 
These passages, in my opinion, correctly state the legal 
principles on which the exemption is founded, and are in 
accordance with the course of decisions in our courts: 
See, for example, the latest case of The Parlement Beige 
in the court of appeal, in which it was said (I am reading 
from the marginal note, which is fully borne out by the 
judgment) that as a consequence of the absolute inde- 
pendence of every sovereign authority and of the inter- 
national comity which induces every sovereign state to 
respect the independence of every other sovereign state, 
each state declines to exercise by means of any of its 
courts any of its territorial jurisdiction over the person 
of any sovereign or ambassador, or over the public 
property of any state which is destined to its public use, 
or over the property of any ambassador, though such 
sovereign, ambassador, or property be within its terri- 
tory. I am unable to think that the issue of a writ 
in an action which action the court has no jurisdiction 
to entertain, and which writ, therefore, the court has no 
jurisdiction to issue, can prevent the statute running." 
It seems to me impossible consistently with the law as 
there expressed to hold that it is permissible to recognize 
a maritime lien as attaching to the property of a sovereign 
or a sovereign state. I see no distinction in principle 
between the act of the individual issuing the writ and 
the act of the law attaching the lien. Each equally 
offends the rule affording immunity. If this is the cor- 
rect view of the law then the appellants are entitled to 
succeed, because unless a maritime lien attached to the 
Terraete while she was the property of the Belgian Gov- 
judgment. ernment it can not attach at all. In my opinion the 
appeal must be allowed with costs here and below and 
the order made with costs relieving Messrs. Downing 
and Handcock of their undertaking dated January 12, 
1922, and setting the writ aside and staying all pro- 
ceedings thereunder. 



PROCEDURE IN REM 69 

Scrutton, L. J. : In May, 1920, the English steamer, 
Lynntown, being in the Spanish port of Bonanza on the 
Guadalquivir River and within Spanish territorial waters, 
but on the "high seas," as that term is interpreted in the 
English admiralty court, sustained damage by collision 
with the steamship Tervaete. The Tervaete had been sur- 
rendered by the German Government to the allied powers, 
who handed her over to the Belgian Government, whose 
property she was at the time of the collision. After the 
collision the Belgian Government sold the Tervaete to 
private owners, under whose ownership she came to Barry 
Dock where she was arrested by a procedure in rem at the 
suit of -the owners of the Lynntown. They alleged that 
the collision gave rise to a maritime lien, inchoate till the 
Tervaete came within British territorial waters, dormant 
till she ceased to be the property of the Belgian Govern- 
ment, but which could be enforced when the Tervaete, as 
the property of private* owners, came within British 
jurisdiction. 

The owners of the Tervaete replied that as the Tervaete 
at the time of the collision was the property of the Belgian 
Government, against whom no proceedings could be taken 
in personam and against whose ship no proceedings could 
be taken in rem, no maritime lien could arise. The 
president, in a reserved judgment, adopted the contention 
of the owners of the Lynntown, and the owners of the 
Tervaete appeal. 

In my view it is now established that procedure in rem 
is not based upon wrongdoing of the ship personified as an 
offender, but is a means of bringing the owner of the ship 
to meet his personal liability by seizing his property. 
The so-called maritime lien has nothing to do with pos- 
session, but is a priority in claim over the proceeds of 
sale of the ship in preference to other claimants. It does 
not appear eo nomine in cases of collision in the reports 
till The Bold Buccleugh 55 was heard in 1851, where it is 
defined as a claim or privilege upon a thing to be carried 
into effect by legal process; and it is stated, erroneously 
as is now admitted, that wherever an action in rem lies 
there a maritime lien exists. The report proceeds: 
"This claim or privilege travels with the thing, into 
whosesoever possession it may come. It is inchoate from 
the moment the claim or privilege attaches, and when 

"7 Moo. P. C. 267, 284. 



70 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

carried into effect by legal process, by a proceeding in 
rem, relates back to the period when it first attached." 

The cases as to the relation of a maritime lien to the 
personal liability of the owner are exhaustively examined 
by the late Lord Gorell in The Ripon City. 56 He comes 
to the conclusion that a maritime lien may exist, though 
the owner is not personally liable, where there is personal 
liability in those to whom he has voluntarily intrusted the 
control of the vessel, as charterers, though not if his 
intrusting is compulsory, as in the case of compulsory 
pilots. But for a lien to arise, in my view, some person 
having by permission of the owner temporary ownership 
or possession of the vessel must be liable for the collision. 
If he is so liable, a privilege or lien at once arises in this 
sense, that if the vessel comes within English territorial 
waters it may be arrested, and the claim or privilege on it 
will date back to the time of the lien. Any purchaser 
after the collision takes the ship subject to this possibility 
of claim. 

At the time of the collision, if it happened in English 
waters, would it have been possible to arrest the Tervaete 
and claim a maritime lien? The well-known decision of 
The Parlement Beige compels the answer in the negative. 
Neither the Belgian Government could have been sued 
in personam, nor could their ship have been arrested 
in rem. If this is so, I do not understand how there could 
then be any maritime lien on the ship. To hold that a 
lien would come into existence, if the Government sold 
the ship to a private purchaser, would be to deprive 
the Belgian Government of part of their property, for 
such a lien about to arise must reduce the price paid to 
the Government and so affect the property of the Gov- 
ernment. 

The general language of Lord Watson in The Castle- 
gate? 1 that "a proper maritime lien must have its root 
in the personal liability of the owner," approving the 
language of Lord Esher to the same effect in The Parle- 
ment Beige, and the similar language of Sir Francis 
Jeune in The Utopia,™ appear to me entirely to support 
this view, even if that general language is not applicable, 
as Gorell Barnes, J., in The Ripon City 59 thought it was 



55 [1897] P. 226. 58 [1893] A. C. 492, 499. 

« [1893] A. C. 38, 52. » [1897] P. 226. 



GOVERNMENTAL EXEMPTION 71 

not, to the complicated facts in that case. And while I 
agree with the president that the passage in The Parle- 
ment Beige 60 was not strictly necessary to Brett, L. J.'s, 
decision, yet it was so closely related to it that coming 
from such a master of maritime law I have no hesitation 
in following it, especially as I agree with it in principle. 
Brett, L. J., says: "The property can not be sold as 
against the new owner, if it could not have been sold as 
against the owner at the time when the alleged lien 
accrued. This doctrine of the courts of admiralty goes 
only to this extent, that the innocent purchaser takes the 
property subject to the inchoate maritime lien which 
attached to it as against him who was the owner at the 
time the lien attached." In the present case no lien 
attached against the Belgium Government, nor could 
their ship have been arrested in rem. But if they could 
only sell the ship subject to the lien, their property 
would be affected by the lien, in that they would receive 
less than the value of the ship free from encumbrances 
or liens. The result would be that our law would assert 
a right over the property of a foreign sovereign not 
arising from any voluntary action on his part, which 
adversely affected his property. 

I agree that a sovereign may call upon us to enforce 
legal rights in his favor. The Newbattle 47 shows that 
if he does so, we may refuse to enforce those rights 
unless he allows the legal rights we recognize to be 
effectively enforced against him. I agree that cases 
like Gladstone v. Musurus Bey 60 and Larivere v. Mor- 
gan 61 show that where English trusts are concerned, this 
court will proceed though foreign sovereigns' rights are 
concerned, while, on the other hand, Vavasseur v. 
Krupp 62 involves the proposition that this country will 
not enforce English patent rights against property in the 
jurisdiction which a foreign sovereign claims. I am 
disposed to agree that the ground of the decisions is that, 
though there are English rights, we do not enforce them 
against a foreign sovereign directly or indirectly be- 
cause of the comity of nations. But it respectfully 
appears to me that the error of the president's judgment 
is that he is enforcing rights against a foreign sovereign 
indirectly, when he supports the view that over his 

» 10 P. D. 33. « (1872) L. R. 7 Ch. 550. 

«o (1862) 1 H. & M. 495; 32 L. J. (Ch.) 155. ^ (1878) 9 Ch. D. 351. 



72 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

property there is by English law an inchoate lien which 
will diminish the value of that property by lowering 
the price that a private purchaser will give for it. 

I appreciate that the matter becomes of international 
importance, if States increase their commercial trading 
by national fleets. I have already in The Porto Alex- 
andre 12 expressed my views on the disadvantage of State 
immunity in such circumstances. But the remedy is, in 
my opinion, State agreements by diplomatic action, not 
infringement of legal principles based on the comity of 
nations. 

For these reasons I think the appeal must be allowed 
with costs here and below, and the writ against the 
Tervaete set aside. 

Atkin, L. J.: This case raises a question of consider- 
able importance. I have found it difficult, and I differ 
from the reasoning of the learned president with hesita- 
tion; but having formed a judgment which is not in 
agreement with his conclusion I must express it. 

I understand the argument made by the respondents 
and enforced by the president to be this. Collision 
damage caused by the negligent navigation of a ship 
creates a right in the person injured to recover damages 
from the owner responsible for the navigation. It also 
creates a right in the person injured to a maritime lien 
over the ship, so causing damage. That lien is not a 
possessory lien; but consists of the right by legal pro- 
ceedings in an appropriate form to have the ship seized 
by officers of the court and made available by sale if not 
released on bail to pay the collision damage. If the ship 
is the property of a foreign sovereign it is admitted that 
legal proceedings can not be commenced against him 
either personally or in rem — i.e., for the arrest of the 
ship — because by comity of nations no process can be 
brought in the courts against the person or the property 
of a foreign sovereign. But this is only a personal 
privilege of the sovereign not to be impleaded. The 
right of the injured person to damages and to a lien still 
exists; and as the right to a lien is not abrogated when 
the ship is transferred into the property of a third person, 
so when the ship formerly owned by the foreign sovereign 
becomes the property of a third person not protected by 
the personal privilege of the sovereign, the right to a lien 
becomes effective, and the necessary proceedings in rem 

« [1920] P. 30. 



NATURE OF LIENS 73 

may be taken against the ship. The right to a maritime 
lien, it is said, is equivalent to a charge created by the 
voluntary hypothecation of a chattel by the sovereign, 
a charge which may not be capable of enforcement while 
the chattel is in the possession or ownership of the 
sovereign, but can be enforced as soon as it is transferred 
to the property of a third person. 

A part of this reasoning is irresistible. It seems to me 
correct to say that the acts of a foreign sovereign may 
constitute breaches of contract or of duty not arising 
from contract which create rights in the other party. 
True, such rights may be of little value, as they can not 
ordinarily be enforced by action. Bat the inability is a 
mere personal inability to sue; they can be made effective 
in defense as, for instance, by set-off where the rights 
give rise to a power of set-off; and, as I should suppose, 
by a plea of contributory negligence; and should the 
sovereign submit to the jurisdiction in respect of a claim 
based upon such rights, I apprehend that the court 
would be bound to give effect to them. 

But in my judgment upon a true analysis of what is 
meant by a maritime lien the right to such a lien is not 
such as can be created at all by the act of a sovereign. 
It is not a right to take possession or to hold possession 
of the ship. It is confined to a right to take proceedings 
in a court of law to have the ship seized, and, if necessary, 
sold. The action in rem is an action in which the owners 
of the ship are named as parties to the proceedings and 
in which, according to our procedure, if they appear, sub- 
ject to the statutory right to limit liability, they will be 
made liable personally for the full damage regardless of 
the value of the res. The owner, therefore, in such an 
action is directly impleaded. But whether it be directly 
or indirectly, the owner who is a foreign sovereign can 
not be impleted at all. The result appears to me to be 
that the maritime lien against a foreign sovereign can 
not exist at all. A right which can only be expressed as 
a right to take proceedings seems to me to be denied 
where the right to take proceedings is denied. No in- 
dependent liability of the sovereign such as a liability for 
debt or damages remains pendent protected only by an 
immunity from legal proceedings. The right of mari- 
time lien appears, therefore, to be essentially different 
from a right of property hypothec or pledge created by the 



74 vessels: ownership, charter, and service 

voluntary act of the sovereign. If this reasoning be 
correct, inasmuch as there never was a time during the 
ownership of the Belgian Government when the re- 
spondents could aver that they possessed a maritime lien 
over the Tervaete, there was no obligation which attached 
to the ship or to the new owners when the ship became 
their property. On the explanation of the origin of a 
maritime lien given by Jeune, P., in The Dictator, 63 one 
may perhaps be allowed to wonder how such a right 
avowedly dependent upon the personal liability of the 
owner could be held to be enforceable against a new 
owner not in any way personally liable for the collision. 
It is too late to raise a doubt as to this point after the 
decision of The Bold Buccleugh.^ But where there was 
no right against the old owner, the new owner must 
escape. I myself should in any case feel bound by the 
dictum of Lord Esher in The Parlement Beige, 7 referred 
to in the judgment of the president. 

I have thought it necessary to state my views on this 
difficult question in my own way, because I am not sure 
that I feel so much pressed as my brothers with the con- 
tention that a dormant maritime lien over a foreign sover- 
eign 's ship would affect the value of the ship in his hands, 
and therefore must be negatived. The supposition that 
the liability existed as for personal claims, but was merely 
unenforceable, does not seem necessarily to be invalidated 
by the fact that such liability would impose pecuniary 
disadvantages upon the sovereign. A voluntary pledge 
or hypothec would be attended with the same results, 
but would it not be valid? I do not, however, dissent 
from their view. I concur in the views taken by my 
brothers of the cases cited by them and of their bearing 
on this case. I only desire to add a word or two on The 
Newbattle 47 in the court of appeal. There the court held 
that upon the construction of the admiralty court act, 
1861, where a foreign Government had brought an action 
in rem against the owners of the Newbattle, an order could 
be made staying the action until security had been given 
bj the plaintiffs to answer the cross claim of the defendant 
in respect of the same collision. The relevance of the 
case is that under the section a condition precedent of 
such an order is that the plaintiffs' ship can not be 

' 5 P. D. 197. » 3 [1892] P. 304. 

« 10 P. D. 33. 6i 7 Moo. P. C. 267. 



THE ISLAND 75 

arrested, and the decision of -the court proceeds upon the 
ground that though the foreign sovereign had invoked 
the jurisdiction of the court and though he was under 
possible liability for damages in an effective cross suit, 
yet his ship was exempt from arrest. That a maritime 
lien was not enforceable under such circumstances 
appears to afford strong support for the view that it did 
not exist at all. 

For these reasons I think the appeal must be allowed 
and the order made as stated by Bankes, L. J. 

Appeal allowed. 

THE "ISLAND" 

January 30, 1918 
(2 Entscheidungen des Obcrprisengerichts in Berlin, S) 

In the prize matter concerning the Danish steamer 
Island, home port Copenhagen, the imperial superior 
prize court in Berlin in its session of January 30, 1918, 
decreed : 

The appeal against the judgment of the prize court in 
Kiel of May 30, 1917, is dismissed. The costs of the 
appeal are to be borne by the claimant. The further 
complaint of the owners against the decision of Decem- 
ber 12, 1919, of the prize court in Kiel is hereby disposed 
of. 

Reasons : 

The Danish steamer Island, on the way from Copen- statement of 
hagen to New Castle in ballast, was brought to by a thefacts * 
German war vessel on December 2, 1916, and, for 
purposes of a more thorough search, was taken in to 
Swinemunde, where seizure in prize followed on Decem- 
ber 12, 1916. 

The vessel, built in Glasgow in the year 1894, came into 
Danish possession in the year 1900, and, after frequent 
changes of ownership and name in Denmark, was sold 
by an agreement of November 24, 1915- July 21, 1916, 
by the then owner, the Steamer Island Corporation, in 
Copenhagen, to the claimant, Atlantic Ocean Steamship 
Co., a corporation in Copenhagen. The vessel, which 
formerly was called Esrom, was rechristened Island by 
the predecessor of the plaintiff. The Island Co. bought 
the ship in December, 1914, for 275,000 crowns; the 
claimant bought it for 1,000,000 crowns. According to 
an appraisal made at the instigation of the claimant by 



76 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

three experts named by the admiralty and commercial 
court in Copenhagen, presented to the court of first 
instance, the ship is supposed to be now worth 3,120,000 
crowns. 

Engi£h ure by I n October, 1915, the ship, at that time still under the 
name of Esrom, while on a voyage from America to 
Sweden, was captured by the English and ordered to 
Hull. The English thought there was ground for the 
assumption that the vessel was in whole or in part Ger- 
man property. 

Thereupon the English Admiralty, after the ship had 
lain idle a while, requisitioned her, despite the protest of 
the owners and of the Danish Government, and sailed 
her under the English flag from January to July, 1916. 

ieSe nditional re " I n August, 1916, the release of the vessel was accom- 
plished on the condition that she be chartered to an 
English firm, and on August 16, 1916, having in the 
meantime been taken over by the present claimant, 
she set sail for Copenhagen from London, where she had 
lain. Here she was to be docked and undergo extensive 
repairs, for which there had been no opportuinity in 
ChartertoEng . England. By an agreement of August 23, 1916, the ship 

lish firm. was chartered by the claimant to the firm of Furness, 

Withy & Co., Liverpool, as of September 30 at the latest. 
It is provided in the charter party that under certain 
conditions the time of delivery to the charterer may be 
extended still further. On December 2, 1916, after 
partial repairs, the vessel set out in ballast for England, 
and on this trip was stopped by a German war vessel. 
These facts, in part cleared up for the first time in the 
court of second instance, are incontestable in view of 
the records. 

Claim was raised by the Atlantic Ocean Steamship 
Co. in Copenhagen for the release of the steamer, or com- 
pensation to the extent of 3,120,000 crowns. The claim 
was based on the ground that the ship as neutral was not 
subject to capture; more especially that the fact that for 
six months she had sailed under the English flag under 
compulsion had not brought about a change of flag. 
Decision of Kiel g v decision of the prize court at Kiel on May 30, 1917, 

t)rizG court ** i 

the claim was rejected, and confiscation of the vessel 
decreed. The prize court stands upon the ground that 
in truth the illegal requisitioning on the part of the Eng- 
lish Admiralty, and the ensuing use under the English 
flag, did not change the nationality of the ship. It as- 



UNNEUTRAL SERVICE 77 

sumed, however, that the charter of the ship to the firm 
of Furness, Withy & Co. was already running at the time 
of the arrest, and that this contract of charter was tanta- 
mount to a charter to the English Government, inasmuch 
as it was known to the prize court, through secret infor- 
mation to the German Admiralty staff from a reliable 
source, that that English firm was an agent of the Eng- 
lish Government. It was therefore to be presumed, until 
the contrary was proved, that a chartering to the English 
Government had been consummated. 

This would be conclusive in the terms of article 55 c of 
the Prize Code. 

* 

Against this decision the claimants have appealed. te 7p a ™y° f cbar ' 
They deny that at the time of capture the ship was under 
charter to the English. According to the charter party, 
which was produced, the charter was rather to begin on 
the day of the delivery of the ship to the charterer in 
condition to carry cargo. This, however, had not yet 
ensued at the time of the arrest. Furthermore, the judge 
of first instance errs concerning the burden of proof, in 
laying upon the claimant the proof that the chartering to 
Furness, Withy & Co. was not done in the interests of 
the English Government. Moreover, article 55 c of the 
Prize Code is a provision to be strictly interpreted one 
which does not permit of application by analogy. In the 
oral pleading before the superior prize court the claimants 
also contended that unneutral service, in the sense of ic Unneutra] serv- 
article 55 of the Prize Code, could only be assumed if the 
service to the enemy was voluntary. Such was not the 
case here, however, because the claimant had been com- 
pelled to conclude the charter, for only under this con- 
dition was their ship released by the English. The im- 
perial commissioner before the superior prize court 
denied this contention, and asked that the appeal be 
rejected. 

This petition should be granted. 

The judge of the lower court pronounced the con- 
demnation of the vessel in accordance with article 55 c of 
the Prize Code, the relevant version of which reads as 
follows: 

"A neutral ship renders unneutral service to the 
enemy if it is chartered by the enemy government." 

Therefore, the question next presents itself whether 
in the present case chartering by the enemy government 
can be regarded as proved. The superior prize court 



78 vessels: ownership, charter, and service 

does not hesitate to affirm this in common with the 
judge of first instance. According to official information 
of the German Admiralty staff, the English firm, Furness, 
Withy & Co., who concluded the contract of charter 
rnment. ° f Gov " w i tn the claimant, is notoriously an agent of the English 
Government. There is no ground for doubting the 
accuracy of this information; it is, moreover, sub- 
stantiated by other circumstances. The contract be- 
tween the claimant and the above-named firm was 
concluded after the English Government had already 
compelled the ship to sail for six months on her account 
under the English flag. That this in itself involved 
service for the English Government is evidenced by the 
entry in Lloyd's Shipping Register, 1916-17 — men- 
tioned by the judge of first instance — where against the 
name of the vessel is noted: " Requisitioned by the 
Admiralty." Only upon an engagement to charter the 
vessel for a considerable time to an English firm was the 
English Government prevailed upon to give up the ship 
to its owners. The presumption that in reality this 
charter was only a mode of continuing the previous 
service on behalf of the English Government is therefore 
not refuted. In addition to this, the charter was en- 
tered into principally for trips to France and Italy. 
Since the English Government, as is well known, has 
undertaken to supply these countries with all the neces- 
sities of war, especially with coal, it goes without saying 
that the English Government had an especial interest in 
the acquisition of tonnage for this service. The con- 
tentions of the claimant tending to prove that, contrary 
to the assumption of the judge of first instance, in the 
fall of 1916 there was as yet no lack of cargo space in 
England, are not pertinent. Otherwise, charter rate of 
£8,055 a month, or about 2,000,000 marks a year, for a 
ship of 3,208 gross registered tonnage, for which a pur- 
chase price of some 300,000 marks was paid in 1914, 
would be utterly inexplicable. 

Such being the state of affairs, one can not but agree 
with the prize court in its assumption that the steamer 
Island was chartered by the English Government. That 
(.he contract was not concluded through an official organ 
of the Government, or in its name, is of no consequence. 
According to the sense and the purpose of the provision 
of the Prize Code, it is sufficient that the charter was 



FORCE OF CHARTER 79 

entered into for the account of and in the interests of an 
enemy government. 

The second plea of the claimant is to the effect that 
article 55 c of the Prize Code could have no application 
because at the time of capture the ship was not yet 
subject to the terms of the charter, for the latter, accord- ^Ent^ering^mto 
ing to sections 1 and 26 of the original text of the con- 
tract — presented in the court of second instance — was 
only to come into force upon the delivery of the ship 
ready for loading in a port on the east coast of England. 
This is correct to the extent that certainly from the 
point of view of private law the charter had not yet 
begun to run; that is to say, that the obligations of the 
firm of Furness, Withy & Co. toward the claimant only 
began at the time mentioned. This civil law point of 
view, however, can not be decisive here. On the contrary, 
the matter stands thus : The ship was engaged upon this 
trip to England in order to fulfill the charter contract, 
i. e., to place itself at the immediate disposition of the 
charterer, arrived at the east coast of England. The 
sole cause and purpose of the voyage was the fulfillment 
of the contract, by which the ship was thus bound to 
undertake this voyage, too. What the decision would 
be had the vessel been chartered for some future period, 
and at the time of capture had been on a voyage in no 
way connected therewith, an independent, harmless 
carriage of freight, does not need to be discussed. In 
this instance the case is different, and to it article 55 c 
of the Prize Code must be applied. The pertinent sec- 
tion of the Prize Code concerns itself with direct unneu- 
tral service. The article mentioned deals specifically 
with service rendered the enemy government by furnish- 
ing cargo space. The declared purpose of article 55 c is, 
then, to prevent the increase of enemy tonnage through 
the charter of neutral ships. Regarded from this point 
of view, the unneutral service in the present instance had 
already begun when the steamei Island left in ballast for 
England, there to fulfill the terms of the charter. 

It is impossible to expect of a belligerent power that it 
should release a ship chartered to its enemy which had 
fallen into its hands while on the way to assume the obli- 
gations of the charter, because in the private-law sense 
the charter contract had not yet begun to run. Thus 
the conclusion of the judge of first instance is to be 
assented to, even though his assumption that the charter 



80 vessels: ownership, charter, and service 

contract was already running at the time of the arrest 
of the Island proved incorrect in view of proofs produced 
in the court of second instance. 

Whereas, finally, the plaintiff contends that unneutral 
service was not involved, because he was forced into the 
contract with the English firm, that does not follow. 
The superior prize court has already repeatedly taken a 
position in the negative (cf. the Kiew) on the question 
whether it is of importance that an act of which cogni- 
zance is taken in prize law be committed under the 
influence of psychological compulsion. As it was con- 
sidered in the last-mentioned decision sufficient proof of 
enemy destination that the goods were on their way to 
enemy territory, knowingly and intentionally — even if 
under the influence of coercion — so, in this case, it must 
suffice that the ship was chartered for the English Gov- 
ernment, even if the conclusion of the contract may not 
have resulted from a spontaneous decision of the owners. 
Moreover, in this case, the chartering did represent the 
desire of the owners. They could have declined to con- 
clude the contract had they been willing to forego a 
profit which was only to be attained by unneutral service. 
As, therefore, the condemnation of the vessel was rightly 
decreed by the judge of first instance, and therefore no 
question of compensation for the plaintiff is at issue, at 
the same time as the decision of the main point, the 
further complaint of the plaintiff, against the evaluation 
made by the judge of first instance, can be held to have 
condemnation been disposed of without opposition. The judgment is 
therefore affirmed; costs to be decided according to 
section 37 of the prize court rules. 



THE "DRAUPNER" 

June 27, 1918 
(2 Entscheidungen des Oberprisengerichts in Berlin, 62) 

In the prize matter concerning the Norwegian steamer 
Draupner, home port Bergen, the imperial superior prize 
court in Berlin, in its session of June 27, 1918, decided: 

On the appeal of the owners the decree of February 
22, 1918, of the imperial prize court in Hamburg is 
altered to this extent: The destruction of the ship is 
declared to have been illegal and hence the claim of the 
owners to compensation is legitimate. For the deter- 






THE DRAUPNER 81 

mination of the amount of the claim, the matter will be 
remanded to the court of first instance. The decision 
concerning the costs of the owners' appeal is reserved. 
The appeal of the War Risk Insurance Co. for Norwegian 
Ships is dismissed with costs. 

Reasons: 

On November 30, 1916, the Norwegian steamer th f^ ent of 
Draupner, in ballast from St. Nazaire to Cardiff, was 
brought to by a German submarine and destroyed. The 
ship was time chartered to the French coal firm, Com- Charter - 
pagnie de Charbons de Blanzy et de TOuest, in Nantes. 
The charter dated from August 7, 1915, and was re- 
peatedly extended, the last time on August 9, 1916, until 
the end of January, 1917. Under the charter, the ship 
had been employed exclusively in the coal transportation 
service between England and France, and was at the 
time when it was sunk returning from such a voyage to 
reload in England. According to the official report, 
destruction ensued because, although ostensibly the ship 
was chartered by a private firm, in reality this firm was 
only a go-between for the English Government, which 
had secured complete disposition of the vessel in order 
to make use of it in fulfilling its obligation to deliver coal 
to France. The private firm served only to veil the 
real facts, in order to circumvent the provisions of article 
55 c of the Prize Code. 

The imperial prize court in Hamburg held the des true- Hamburg 311 prize 
tion of the ship valid and dismissed the claim of the cour ' 
owners on account of the vessel, as well as that of the 
War Risk Insurance Co. for Norwegian Ships on account 
of the effects and wages of the crew. The decision is 
based upon article 55 c of the Prize Code, according to 
which unneutral service exists if the vessel is chartered 
by an enemy government. It is notorious, so it was 
declared, that England had obligated herself to supply 
coal to France and Italy, and it is well known that with- 
out permission of the authorities in England no vessel 
may clear from an English port. How important a part 
coal plays in the present war needs no further elucidation. 
Even if it was effected between private firms on both 
sides, the supply of coal to France and Italy could only 
take place with the consent of the English Government; 
which, with every load, so far acquitted itself of the 
obligation it had assumed. All this was likewise known 
to and desired by the neutral owners, who, by corrections 






82 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

in the original draft of the charter, had expressly revealed 
themselves privy to the fact that goods were to be 
included in the cargo which would lay the vessel open to 
seizure by the German forces. For such a situation the 
provisions of article 55 c of the Prize Code seem to have 
been made. During a war it is not likely that an enemy 
government will itself charter a vessel. They will, 
rather, employ private individuals for that, as was custom- 
ary even before the London conference in the Russo- 
Japanese War, as regards the relations between the 

London ration of ^ uss i an Government and German shipowners. There- 
fore, under "chartering," in article 46 of the Declaration 
of London, to which article 55 c of the Prize Code con- 
forms, reference can not be made only to the instances 
when the government appears itself as the charterer, 
but to all cases where the ship is placed at the disposal 
of the enemy government by means of the charter party, 
and the neutral owner knew and intended this. 

The appeal of the owners entered against this decision 
appears to be well founded. 

The claimants appeal in the first place to article 112 

of the Prize Code. They contended, and in this court 

have again reverted to the contention that, according 

Destruction f^° ar ticle 112, section 2, the destruction of a neutral ship 

neutral vessel* f or unn eutral service might only be effected if certainty 
existed that the fact could be proved before the prize 
court, and hence, that if the evidence which the ship's 
officer had at his command left room for doubt, the 
destruction must be held illegal and the claim for com- 
pensation allowed, even if later in the proceedings before 
the prize court, the fact of unneutral service was proved. 
The prize court was right in rejecting that contention. 
It requires no further argument that the Prize Code 
could not have intended any such contradictory provision. 
Article 112, section 2, of the Prize Code is not ambiguous. 
Its sole purpose is to keep before the mind of the com- 
mander what important consequences his decision may 
have, and what he must keep especially in view before 
he proceeds with the destruction. The judge of the 
Continuous first instance also raises the question whether the voyage 
of the ship does not involve a continuous voyage whereby 
the trip in ballast would be part of the carriage of the 
coal. He leaves it undecided whether even in this case 
the capture, and the final destruction, can not be justi- 
fied. However, the suggestion must be thrown out. 






GOVERNMENT CHARTER 83 

For even if one wishes to regard it from the point of 
view of carriage of contraband, one would be forced 
to admit that capture can no more take place on the 
ground of a complete carriage than on the ground of one 
merely contemplated but not yet begun. Therefore, 
only the actual stipulations of article 55 c come under Q ^ c a J J 65 p? iz V 
consideration. The provision required — in the form in Code * 
which it applied at the time the ship was captured — that 
the vessel be chartered by the enemy government. 
That in the meantime the law has been changed so that 
it suffices for the vessel to have undertaken the voyage in 
the interest of the enemy's conduct of the war, can not 
be regarded by the prize court, which incidentally draws 
no inferences from the fact, as a merely interpretive 
explanation. On the contrary, a new and essentially 
more comprehensive provision is established along with 
the former. Moreover, it must be observed that, so 
far as concerns the original version, which corresponds 
with the Declaration of London, the definite limitation 
of the general notion which is to be found also in section 
c is to be referred to the instigation of the German repre- 
sentative at London. Just on this point he opposed the 
more general and elastic wording of the proposition of 
the English. Nor can anything be concluded from that 
fact that the English text of the Declaration of London, 
instead of speaking of " chartered" vessels, speaks of 
those in the " employment" of the government. The 
French is the official text, and the more elastic expression 
of the English translation is to be referred to it for its 
true meaning. 

At all events, it is correct to sav that it makes no 
difference whether the government be named in the 
charter as a party to the contract, whether the former 
be drawn up in writing or agreed to by word of mouth. 
On that principle the superior prize court has already 
rendered a decision — the Island. Otherwise the pro- 
vision would be meaningless in practice. For there is 
nothing easier than to find private concerns who are ready 
to enter, ostensibly as contractants, into a charter party 
which is really being concluded for the government. It 
must suffice that the vessel be placed at the disposition 
of the government as fully as if it had itself chartered 
her. 

So far the reasoning of the decision from which appeal 
is taken may be followed. On the other hand, there is 



84 vessels: ownership, charter, and service 

no ground for the assumption that the circumstances 
of the present case correspond with the fundamental 
requirement. 
coS el to erl F?an°ce lfc i s > °f course, well known that the English Govern- 
and Italy. ment has pledged itself to deliver stipulated quantities 

of coal to France and Italy. From this it may at once 
be concluded that the supply of this coal is dependent 
upon an extensive control on the part of the English 
Government. But contract of this sort may be exercised 
without the Government necessarily taking the exporta- 
tion directly into its own hands. There is no support 
for the contention that one had entered into the execu- 
tion of a Government operation in England on this 
behalf. When it is reported that in the countries of 
destination — France and Italy — committees were to 
be formed to distribute the necessary amount of coal in 
the different districts, and likewise in England com- 
mittees to insure the equal distribution of the orders; 
if, moreover, fixed prices for the coal and fixed maximum 
rates for the freight were established; when, further- 
more, the English Government reserves to itself the 
sanction of every single charter party to be concluded 
with a Norwegian shipowner, that all tends to prove 
that in regard to the supply of coal to France and Italy, 
the free traffic of the open freight market, even if strictly 
controlled and more or less limited, is in no wise excluded > 
and that the conveyance of the coal was not accom- 
plished directly by the Government itself. Moreover, 
it must be considered that the present case concerns 
itself with a charter agreement with which no English 
firm was concerned at all, one which, on the contrary, 
was concluded directly between the French importer 
and the Norwegian shipowner. 

It is not denied that our interests in the conduct of 
the war demanded that we combat this coal transporta- 
tion by all the means at our disposal. The proposition 
that wars are only carried on against the military forces 
of the States involved in war no longer holds to-day. 
At all events, it does not hold of the present war, upon 
which the stamp of the English method of conducting 
war has been more and more impressed. In addition to 
the direct employment of armed forces, all possible 
means of weakening the economic life of the enemy 
countries are employed as measures of war, and, to that 
extent, one is warranted in saying that every ship taking 



WAGES 85 

€oal to France or Italy is opposing the purpose of our 
conduct of the war and supporting that of our enemy. 
The application of this theory to the administration of 
justice finds its limits at the point where positive legal 
axioms are encountered. On these and their observance 
the neutral must be able to rely, if faith in law and 
justice is not to be deceived and shattered. Even if 
the greater severity which the Prize Code assumed 
by the new version of article 55 c was warrantable, it 
still remains true that it can not be applied to a time at 
which it was not yet in force. 

Thus the detention of the vessel is proved unjustifiable, 
and the appeal of the owner succeeds. 

On the other hand, the claim of the insurance company su ranee °com-* 
for wages and effects of the crew was correctly denied. pany * 
In the first place, it is insufficiently supported by the 
claimants in that a policy has neither been presented 
nor even an allegation set up as to who the insured is or 
are, whose rights the claimant is prosecuting before the 
prize court. The claim on behalf of wages lost is further ages * 
opposed by the consideration that it is not clear what 
wages are involved. If it is the wages for the current 
voyage and if, as is to be assumed by the statement of 
the owners and from the claims asserted by them, the 
freight was paid in advance, then the amount of the 
wages will be made good from the compensation for the 
freight, which amount the owners may on no account 
retain for themselves. According to the assertion now 
made by the claimant, which has been verified by docu- 
mentary evidence, it must be borne in mind that, con- 
cerning the wages as well as the effects, it is not a ques- 
tion of real insurance and of indemnification for an actual 
loss which gives the measure of the amount of damages. 
On the contrary, the claims are made in virtue of a 
law — which was unmistakably promulgated to counteract 
the aversion of sailors to service on board ship, which has 
become very dangerous — to give to every member of the 
crew, officers as well as men, a definite sum, figured in 
round numbers, upon the loss of their vessel, without 
regard to whether wages and effects had actually been 
lost, and if so, to what extent. 

Compensation for such performances can certainly not 
be demanded. Granted that the capturing State is 
bound according to prize law to make compensation for 
damages, it only has to compensate for losses which have 



86 vessels: ownership, charter, and service 

actually occurred. But there can not be included in 
that the expenses that a third party — here, the State — 
grants to those who were involved in the affair, without 
regard to whether damages have occurred or not and 
how high they run. 

Therefore the judgment is affirmed. 



THE "ESPERANZA" 

June 27, 1918 

(2 Entscheidungen des Oberprisengerichts in Berlin, 169) 

In the prize matter concerning the Norwegian steamer 
Esperanza, home port Tonsberg, the imperial superior 
prize court in Berlin in its session of June 27, 1918, 
decided: 

The appeal against the judgment of the imperial prize 
court in Hamburg of February 22, 1918, is dismissed with 
costs. 

Reasons : 
fact tatement of ^ n J anuar y 15, 1917, the Norwegian steamer Esperanza, 
in ballast from Spezia to Barry, was brought to and sunk 
by a German submarine. The ship was chartered to the 
firm of Furness, Withy & Co. for 12 months under date of 
February 4, 1916, and had carried coal to Italy. She 
was on the return voyage to England to take on a new 
cargo of coal. Appeal is brought by the owners for the 
ship, equipment, and expenses of repatriating the crew 
and by the War Risk Insurance Co. for Norwegian Ships 
for the lost wages and effects of the crew. 
Decision of The imperial prize court in Hamburg held that the 

Hamburg prize ■ ' » i ■» • f t • i i 

court. destruction or the ship was legal and dismissed the 

claims. The decision is based on article 55 c of the Prize 
Code, according to which one is guilty of unneutral service 
if the vessel is chartered by an enemy government. It 
is notorious, so it was said, that England had assumed 
supply of coal the obligation of delivering coal to Italy and France, and 

itaiy. ranc ° an it is known that without permission of the authorities in 
England no ship might leave an English harbor. What 
an important role coal plays in the present war does not 
need to be expatiated upon. The supplying of coal to 
France and Italy, even if it was effected between private 
concerns, could only take place with the permission of 
the English Government, which, with each delivery, 
acquitted itself to that extent of the obligation it had 



THE ESPERANZA 87 

assumed. The neutral owners knew and inter ded this, 
for by corrections in the draft of the charter they ex- 
plicitly declared that they understood that goods were 
to form the cargo which would lay the vessel open to 
the danger of capture by the German forces. Such a 
case is provided for by the provisions of article 55 c of 
the Prize Code. It is unlikely in war that an enemy 
government should itself charter the vessel ; it will rather 
employ private individuals for that, as was the custom 
even before the London conference in the Russo-Japanese 
War in the relations existing between the Russian Gov- 
ernment and German shipowners. In article 46 of the 
Declaration of London, to which article 55 c of the Prize Lo ^ e d c dr tioD * 
Code conforms, under the head of " chartering" refer- 
ence must be made, not only to the case where the Gov- 
ernment itself appears as charterer, but to all those 
instances in which the vessel is at the disposal of the 
enemey government and the neutral owners know and 
desire it. 

The appeal of the claimants entered against this judg- 
ment fails. In his conclusion the judge of first instance 
must be upheld, even if the deductions in the grounds 
for the decision can not always be considered correct. 

If at the time of capture article 55 c of the Prize Code otrman^Prize 
had already been in force in the form which it acquired Code - 
by the ordinance of July 29, 1917, the decision would be 
rendered without further ado. For it is not contested 
that the vessel was on a voyage from and to enemy terri- 
tory and was chartered by an enemy subject. One 
would have to assume, therefore — as the facts do not 
gainsay the assumption, of which more later — that the 
vessel had set sail "in the interests of the enemy's con- 
duct of the war." But the law did not yet read thus when 
the Esperanza was destroyed, and the judge of first in- 
stance can not be concurred with in assuming that the 
supplementary law of July 29, 1917, did not add any- 
thing new, but was rather a commentary on the law 
already in force. One must not forget that article 55 c 
of the Prize Code, like its prototype article 46 of the 
Declaration of London, set itself the task of circum- 
scribing the uncertain and vague conception of unneutral 
service. When, under section c it is specified that the 
ship be " chartered by the enemy government" one charter to 

• i i .i , ii , . .,. enemy govern- 

may indeed say that every vessel so chartered is sailing ment. 
in the interest of enemy conduct of the war. But it 



88 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

won't do at all simply to transpose the sentence. On 
the other hand, it is quite correct that it can make no 
difference whether the enemy government is designated 
in the contract of charter as the charterer, or whether 
it appears at all as party to the contract. The provi- 
sion would otherwise be without practical significance, 
for if an enemy government wishes to secure for itself 
the disposition of a merchant vessel, without this fact 
appearing, nothing is easier than for it to employ a 
go-between for .this purpose, who puts himself forward 
in place of the government in the r61e of charterer. In 
the sense of the provision of the law it must suffice that 
the government has in fact secured that control over 
the vessel that it would have procured by a contract of 
charter concluded directly with the owner. 

In the cases of the Draupner, Asta, and Saga, decided 
at the same time as the present case, where the capture 
and destruction of the vessels took place under appar- 
ently similar circumstances, the court refused to affirm 
the condemnation. Here, on the contrary, the parti- 
cular circumstances lead to a contrary decision. 

The Draupner and the Astra were chartered directly 
by the Norwegian owners to French coal companies, who 
were outside the immediate sphere of power of England, 
and the Saga was admittedly chartered by an English 
firm, but nothing was known of the latter's connection 
with the Government. Moreover, this firm had sub- 
chartered the vessel to different firms for the current 
and several previous voyages, and that not only for the 
transport of coal. The Esperanza, on the other hand, 
was leased to the firm of Furness, Withy & Co., in 
London, whose relation to the English Government has 
already come to the knowledge of the court in the prize 
matter of the Island. 
The island. j n ^ a ^ case, too, it was a neutral ship that was char- 
tered by the above-mentioned firm, and it was evident 
from the accompanying circumstances that it was a 
question only of the execution of a demand for the ship 
made by the Government in this form. The relation of 
this firm to the English Government, which can be 
deduced from the above, is fully elucidated by an incident 
in the English House of Commons, of which a report is 
given in No. 1756 of "Fairplay" for April 5, 1917. 
According to it, upon a question being raised in Parlia- 
ment concerning rumors of excessive war profits of ship- 



DESTRUCTION 89 

owners, and of the very firm in question, the latter was 
protected by the Government representative. He 
explained that " during the period August, 1914, to March 
15, 1917, many neutral vessels have been chartered by 
Furness, Withy & Co. on behalf of His Majesty's Gov- 
ernment ;" that the Government had never paid even a 
commission to the firm. On the contrary, that even such 
commission as they draw from foreign shipowners they 
place to the credit of the Government and that the 
Government is glad to seize the opportunity to express 
its thanks to the company "for their ungrudging and 
invaluable services." So in the present case, in the charter 
concluded with the owners, Furness, Withy & Co. have 
arranged for a commission of 2J^ per cent for themselves 
as intermediary which, it is to be assumed from this 
explanation of the English Government representative, 
has also been placed to the credit of the English Govern- 
ment. Further light is shed upon the facts and law of 
the case by the correspondence of the firm with the 
captain, which was found among the ship's papers. It 
was addressed to Palermo, and directed the captain to 
deliver up his cargo to the Italian Government if the 
consignee should not be on the spot, as they were covered 
against claims for recovery which might be preferred by 
the rightful possessors of the bills of lading. Accordingly, 
the charterer was in a position to deliver his entire cargo 
of coal to the Italian Government without regard to the 
possessor of the bill of lading, a fact which shows unmis- 
takably that on the English side as well it was a question 
of a transaction of the Government. 

In view of all this, there can be no doubt that the 
firm, Furness, Withy & Co., was only concerned in the 
matter as an organ of the English Government, and 
that the latter had the same power of disposition over 
the vessel as if it had itself concluded the charter. Ac- 
cording to what has been said above, the requirement 
of article 55 c of the Prize Code seems to be fulfilled. 
The vessel was, therefore, legally captured, and as a 
sequel destroyed. 

The claimants rely upon article 112 of the Prize Destruction of 

/-i i t i n neutral vessels 

Code. In the court of first instance they contended, 
and have reverted to the contention in this court, that 
according to article 112, section 2, of the Prize Code, 
the destruction of a neutral ship for unneutral service 
33474— 25t 7 



90 VESSELS : OWNERSHIP, CHARTER, AND SERVICE 

may only take place when certainty exists that the fact 
can be proved before the prize court, and hence, if the 
evidence at the command of the ship's officer still left 
room for doubt, the destruction of the prize must be 
declared illegal and indemnity allowed, even if in the 
proceedings before the prize court the fact of unneutral 
service is proved. The prize court was right in dis- 
missing that contention. Article 112, section 2, is not 
ambiguous. Its sole purpose is to remind the com- 
mander what serious consequences his decision may 
have, and what he must especially aim at before pro- 
ceeding to the destruction. 

So far as concerns the appeal of the War Risk In- 
surance Co. for Norwegian Ships on account of lost 
property and wages of the crew, this appeal also fails if 
for no other reason than that article 115 of the Prize 
Code, upon which the claimant relies, only provides 
indemnity for neutral cargo. 

For these reasons, the judgment is affirmed. 



THE "SYLVAN ARROW" 

([1923], P. 220) 

Syllabus. Shipping — Collision — Ship under Government requisition — Officers 

and crew servants of Government — Action in rem for collision 
damage — Whether maritime lien attaches after ship released from 
requisition. 

While under requisition by, and manned and operated by, the 
United States Government, the defendants- steamship was in 
collision with and did damage to the plaintiffs' steamship. 
After the vessel had been released from requisition the plain- 
tiffs commenced an action in rem for their collision damage. 
In that action the defendants pleaded (inter alia) that "at 
the time when the collision is alleged to have taken place the 
Sylvan Arrow was under requisition by and under the sole 
control and management of the Government of the United 
States and was being navigated by persons who were the 
servants of the said Government and for whose negligence 
the defendants were and are in no wise responsible. * * * 
The defendants say that the action is not maintainable in 
rem by reason of the facts set out " above. On the hearing of 
this question as a preliminary point of law: 

Held, on the facts, that the defendants had surrendered their vessel to 
the United States Government under compulsion, that in no 
sense could it be said that the master and crew derived their 
authority from the defendants, and that in the circumstances 
no maritime lien attached to the vessel by reason of the col- 
lision and her owners were not, either through their vessel or 
otherwise, liable, to the plaintiffs. 



THE SYLVAN ARBOW 91 

Quaere, as to where an owner voluntarily places his vessel in the 
possession and control of charterers or other persons, whether 
The Lemington ([1874] 2 Asp. M. L. C. 475) was correctly 
decided, having regard to the principles laid down in The 
Parlement Beige ([1880] 5 P. D. 197, 218) and other cases. 

Action of damage by collision. 

The plaintiffs were the owners of the steamship W. I. 
Radcliffe. 

The defendants were the owners of the steamship or 
vessel Sylvan Arrow. 

On December 1, 1918, a collision was alleged to have fa *j** tement ot 
taken place in New York Harbor between the plaintiffs' 
steamship W. I. Radcliffe and the defendants' steamship 
Sylvan Arrow. The Sylvan Arrow, a vessel owned by 
the Standard Transportation Co., an American corpora- 
tion, was at the time of the alleged collision admittedly 
manned and operated by officers and men appointed by 
the United States Navy Department, under a form of 
requisition charter entered into between the owners and 
the United States Government, pursuant to an order of 
requisition dated December 29, 1917. On July 6, 1922, 
after the Sylvan Arrow had been returned to her owners, 
the owners of the W. I. Radcliffe commenced the present 
action in rem against the Sylvan Arrow, and although the 
two years allowed by the maritime conventions act, 1911, 
for the commencement of actions had expired, they ob- 
tained the leave of the court to maintain their suit. By 
their defense of that action the owners of the Sylvan 
Arrovj pleaded that they had no knowledge or information 
of the alleged or any collision between the Sylvan Arrow 
and the W. I. Radcliffe; that " (2) alternatively if any 
collision took place between the W. I. Radcliffe and 
Sylvan Arrow, which the defendants do not admit, the 
defendants deny that the collision and damage mentioned 
in the statement of claim were caused or contributed to 
by the alleged or any negligence on the part of them- 
selves or their servants. At the time when the said col- 
lision is alleged to have taken place the Sylvan Arrow 
was under requisition by and under the sole control and 
management of the Government of the United States 
and was being navigated by persons who were the servants 
of the said Government and for whose negligence the 
defendants were and are in no wise responsible. * * * 
(4) The defendants say that the action is not maintainable 
in rem by reason of the facts set out in paragraph 2 
hereof." 



92 



vessels: ownership, charter, and service 



Argument 
defendants. 



Argument 
plaintiffs. 



The question of law so raised was argued as a prelimi- 
nary point. 

for Kaeburn, K. C, and Dumas for the defendants: All the 
old cases dealing with this matter are to be found sum- 
marized in the judgment of Gorell Barnes, J., in TJie 
Ripon City. 65 In every case where the owner has been 
found liable for damage done by his ship while she was in 
the possession and control of other persons it has been 
because the owner has voluntarily parted with the posses- 
sion and control of the vessel to those other persons, and 
those who have been guilty of the negligence must be 
deemed to have derived their authority from the owner. 
The owner would be liable even if he had handed over the 
vessel to charterers under a demise charter, which put it 
out of his power to choose the master and crew, if he had 
entered into the charter voluntarily. Here there was not 
a voluntary surrender but a compulsory taking by the 
United States Government. You can not imply the 
owner's authority, and therefore no maritime lien at- 
taches to the vessel and her owner is not liable. 

for Dunlop, K. C, and Ballock for the plaintiffs : The Docu- 
ments establish that the notice of requisition was never 
acted upon and that at the date of the collision, the Sylvan 
Arrow was in the possession of the American Government 
as charterers by demise, under a charter party dated 
December 29, 1917, and an agreement made on July 15, 
1918. It was from the charter party and agreement that 
the American Government derived their authority and 
not from the order of requisition. There is no evidence 
that the Government had any power to compel the owners 
to enter into the said charter party and agreement, or 
that the vessel was handed over under any compulsion. 
Instead of requisitioning the vessel the Government pre- 
ferred to make a voluntary agreement for hire. It is none 
the less voluntary because, if the defendants had not 
agreed, the Government had power to take the vessel by 
a totally different proceeding. There is no suggestion in 
the defendants' affidavits that they entered into the 
agreement because they had been served with a re- 
quisition order. All they say is that they entered into a 
requisition charter, and for all the evidence to the con- 
trary that charter may have been entered into at the 
owners' request. The return of the vessel is not a release 
from a requisition order but a redelivery from a requi- 



em [1897] P. 226. 



REQUISITION 93 

sition charter. If- the owners have voluntarily given the 
charterer the option of putting his own crew on board 
and exercising sole control of the navigation, the crew are 
deemed to have derived their authority from the owners 
through the charter, and a maritime lien attaches to the 
vessel for damage occasioned by the negligence of the 
crew: See The Lemington, 66 the judgment in which case 
was approved by Gorell Barnes, J., in The Ripon City.™ 
[They also referred to The Edwin 68 and The Tervaete 69 ] 
Raeburn, K. C, in reply: The chain of cases which in- 
clude The Ticonderoga 70 ; The Lemington 66 ; The Tas- 
mania 71 ; and The Ripon City 67 would seem to have 
grown up before it was fully appreciated that the liability 
of the ship and the liability of the owner must march 
together; see, moreover, The Parlement Beige 7 and The 
Utopia 72 The compulsion was to give up the possession 
of the ship under the requisition order. The agreement 
was merely as to the terms of the requisition. 

July 16. Hill, J.: On December 1, 1918, the plaintiffs' 
steamship, the W. I. Radcliffe, and the defendants' 
steamship, the Sylvan Arrow, were in collision in New 
York Harbor. The Sylvan Arrow was then, and still is, 
owned by the defendants, the Standard Transportation 
Co., a private corporation, registered under the laws of 
the State of Delaware. It is admitted, and clearly ap- 
pears from the affidavits put in, that at the time of the 
collision the master and crew of the Sylvan Arrow were 
the servants not of the defendants but of the American 
Government, appointed, employed, and controlled by 
the Navy Department. The issue now to be determined 
is whether, assuming the collision to have been caused 
by the negligence of those in charge of the Sylvan Arrow, 
any maritime lien attached to the Sylvan Arrow, and 
whether by reason of such lien the defendants can be 
proceeded against by writ in rem against the ship. The 
defendants raise this question by paragraph 2 of the 
defense: "The Sylva,n Arrow was under requisition by Requisition, 
and under the sole control and management of the Gov- 
ernment of the United States and was being navigated by 
persons who were the servants of the said Government 
and for whose negligence the defendants were and are in 
nowise responsible." The plaintiffs argued that this did 

7 5 P. D. 179. 09 [ 192 2] p. 259. 

66 2 Asp. M. L. C. 475. ™ (1857) Swa. 215. 

67 [1897] P. 226. » (1888) 13 P. D. 110. 
6 6 (1864) Br. & Lush. 281. " [1893] A. C. 492. 



94 vessels: ownership, charter, and service 

not truly represent the facts and that the facts should be 
stated thus: "The Sylvan Arrow was chartered by the 
defendants as owners to the Government of the United 
States under a charter party operating as a demise and 
was therefore under the sole control and management of 
the Government of the United States and was being navi- 
gated by persons who were servants of the said Govern- 
ment and for whose negligence the defendants were and 
are in nowise personally responsible." The plaintiffs 
contend that upon those facts the ship became subject 
to a maritime lien, and that an action can be maintained 
to enforce it. They rely, of course, upon The Leming- 
ton w — a decision of Sir Robert Phillimore in 1874 — and 
the dicta in The Ticonderoga 7S — Doctor Lushington, 1857 
and The Tasmania 1 * (Sir James Hannen, 1888) and The 
Ripon City 67 (Gorell Barnes, J.). Some day, and prob- 
ably by a higher court, The Lemington 66 and those dicta 
and the contrary dictum of Doctor Lushington in The 
Druid 15 will have to be considered in the light of the 
principles so clearly laid down by the court of appeal 
in The Parlement Beige 76 by the House of Lords in The 
Castlegate 71 and by the privy council in The Utopia. 1& 
The general principle is thus stated in The Utopia : 79 
" The foundation of the lien is the negligence of the 
owners or their servants at the time of the collision, and 
if that be not proved no lien comes into existence, and 
the ship is no more liable than any other property which 
the owners at the time of collision may have possessed. 
In the recent case of The Castlegate 71 * * * lan- 
guage used by the present master of the rolls in The 
Parlement Beige 76 which expresses the above view, was 
quoted with an approval which their lordships desire to 
repeat." What Brett, L. J., said was: "Though the 
ship has been in collision and has caused injury by reason 
of the negligence or want of skill of those in charge of her, 
yet she can not be made the means of compensation if 
those in charge of her were not the servants of her then 
owner, as if she was in charge of a compulsory pilot." 
In The Castlegate 71 Lord Watson stated the principle of 
the maritime law to be that "inasmuch as every pro- 
ceeding in rem is in substance a proceeding against the 

68 2 Asp. M. L. C. 475. n 5 P. D. 197, 218. 

« [1897] P. 226. " [1893] A. C. 38, 52. 

" Swa. 215. " [1893] A. C. 492, 497, 499. 

• 4 13 P. D. 110. n 2 Asp. M. L. C. 475, 478. 

"(1842) 1 W. Rob. 391. 



MARITIME RULES 95 

owner of the ship a proper maritime lien must have its 
root in his personal liability." He then refers to damage 
actions ( The Lemington 68 and The Ticonderoga 73 had been 
cited) and says; "It was argued that the case of lien for 
damages by collision furnishes another exception to the 
general rule, and there are decisions and dicta which 
point in that direction; but these authorities are hardly 
reconcilable with the judgment of Doctor Lushington in 
The Druid 75 or with the law laid down by the court of 
appeal in The Parlement Beige, 7 " and he then quotes 
Brett, L. J. But it may be that for me, The Lemington, 79 
which is a direct decision, is the governing authority. 
Let us see what the decision in that case and the dicta 
in the other cases come to. If they are law, they make 
an exception to the general rule. What precisely is the 
exception ? In The Ticonderoga 80 the observations of £ he Tkonder - 
Doctor Lushington appear to me to be clearly obiter. 
In that case it does not appear that the master and crew 
were appointed or paid by the charterers — the French 
Government — but only that the ship was under the orders 
of the charterers, "in the service of the French Govern- 
ment." In the course of his judgment he said: "I am 
not aware, where there has been any proceeding in rem, 
and the vessel so proceeded against has been clearly 
guilty of damage, that any attempt has been made in 
this court to deprive the party complaining of the right 
he has by the maritime law of the world of proceeding 
against the property itself. Supposing a vessel is char- 
tered so that the owners have divested themselves, for a 
pecuniary consideration, of all power, right, and author- 
ity over the vessel for a given time, and have left to the 
charterers the appointment of the master and crew, and 
suppose in that case the vessel had done damage, and 
was proceeded against in this court — I will admit, for 
the purposes of argument, that the charterers, and not 
the owners, would be responsible elsewhere, although I 
give no opinion upon that point — but still I should 
here say to the parties who had received the damage, 
that they had, by the maritime law of nations, a remedy 
against the ship itself." Then he goes on to contrast the 
case of a pilot by compulsion. The next case is The 

'5P. D.197. " (1842) 1 W. Rob. 391. 

•« 2 Asp. M. L. C. 475. "2 Asp. M. C. L. 475, 478. 

W Swa. 215. *>wa. 215, 217. 



96 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

The Lemington. L em i n gt on ™ [ n wn i cn Sir Kobert Phillimore said: "I 
think the law was correctly laid down by Doctor Lush- 
ington * * * in the case of The Ticonderoga;" 73 
and he went on: "A vessel placed by its real owners 
wholly in the control of charterers or hirers, and employed 
by the latter for the lawful purposes of the hiring, is held 
by the charterers as pro hac vice owners. Damage 
wrongfully done by the res whilst in possession of the 
charterers is, therefore, damage done by the ' owners' or 
their servants, although those owners may be only tem- 
porary. Vessels suffering damage from a chartered ship 
are entitled prima facie to a maritime lien upon that ship, 
and look to the res as security for restitution. I can not 
see how the owners of the res can take away that security 
by having .temporarily transferred the possession to 
third parties. A maritime lien attaches to a ship for 
damage done, through the negligence of those in charge 

Maritime lien. f ^ er ^ j n whosesoever possession she may be, if that 

damage is inflicted by her whilst in the course of her 
ordinary and lawful employment, authorized by her 
owners. Whether the damage is done through the de- 
fault of the servants of the actual owners, or of the serv- 
ants of the chartering owners, the res is equally respon- 
sible, provided that the servant making default is not 
acting unlawfully, or out of the scope of his authority. " 
It will be observed that in both those cases — I am not 
quite sure that it does not color much of the earlier judg- 
ments in this matter — the ship is spoken of as being "the 
guilty party." The next case is The Tasmania, 81 in 
which Sir James Hannen reviewed the cases; and in 
The Ripon City 82 Gorell Barnes, J., expressed the 
opinion that The Lemington 79 was rightly decided. 
Speaking of The Parlement Beige, 7 and the dicta I have 
referred to, he said: "I am convinced that the judges 
did not intend to decide that in no circumstances can a 
maritime lien be obtained unless the owners of the res 
are personally liable in respect of the claim. It will be 
found, in accordance with modern principles and author- 
ities, that there are certain cases in which a maritime 
lien may exist and be enforced against the property of 

? 5 P. D. 197. si 13 p. D. 110. 

73 Swa. 215. 82 [1897] P. 226, 24?, 244. 

" 2 Asp. M. L. C. 475-478. 



MARITIME LIEN 97 

persons not personally liable for the claim, and who are 
not the persons who, or whose servants, have required the 
service or done the damage." A little later, speaking of 
a maritime lien, he says: "This right must, therefore, in 
some way have been derived from the owner either di- 
rectly or through the acts of persons deriving their 
authority from the owner." Then he considers the case 
of a chartered ship: "The principle upon which owners 
who have handed over the possession and control of a 
vessel to charterers, and upon which mortgagees and 
others interested in her who have allowed the owners to 
remain in possession are liable to have their property 
taken to satisfy claims in respect of matters which give 
rise to maritime liens, may, in my opinion, be deduced 
from the general principles I have above stated and thus 
expressed. As maritime liens are recognized by law, 
persons who are allowed by those interested in a vessel to 
have possession of her for the purpose of using or employ- 
ing her in the ordinary manner, must be deemed to have 
received authority from those interested in her to sub- 
ject the vessel to claims in respect of which maritime 
liens may attach to her arising out of matters occurring 
in the ordinary course of her use or employment, unless 
the parties have so acted towards each other that the 
party asserting the lien is not entitled to rely on such pre- 
sumed authority. In my opinion, it is right in principle 
and only reasonable, in order to secure prudent naviga- 
tion, that third persons whose property is damaged by 
negligence in the navigation of a vessel by those in charge 
of her should not be deprived of the security of the ves- 
sel by arrangement between the persons interested in 
her and those in possession of her. * * * The persons 
interested in a vessel in placing her in the possession and 
control of other persons, to be used or employed in the 
ordinary way, must contemplate that claims may arise 
against her in respect of rights given by the maritime law, 
and may be taken to have authorized those persons to 
subject the vessel to those claims." 

In these cases it will be seen that the liability of the 
ship and of the owner through the ship is based upon the 
fact that the negligent persons " derived their authority 
from the owner" and that "the owner placed the ship 
in the possession and control of other persons to be used 
and employed in the ordinary way"; and that "char- 
terers in whom the control of the ship has been vested 
33474— 25t 8 



98 VESSELS: OWNERSHIP, CHARTER, AND SERVICE 

by the owners are deemed to have derived their authority 
from the owners so as to make the ship liable for the 
negligence of the charterers who are pro Jiac vice owners." 
Let us see whether the United States Navy men in charge 
of the Sylvan Arrow derived their authority from the 
defendants — whether the defendants placed the Sylvan 
Arrow in the possession and control of the United States 
Government — whether the control of the ship was vested 
by the defendants in the United States Government. 
According to the affidavit of Mr. Ali sworn on October 
12, 1922, paragraph 3, the Sylvan Arrow was requisitioned 
by the United States Government in December, 1917, 
and handed over under such requisition to the Navy 
Department on July 15, 1918, and remained under such 
requisition until January 21, 1919. To the affidavit of 
Mr. Morse (sworn on March 2, 1923) are exhibited the 
requisition charter party, and it is sworn that from July 
15, 1918, to January 21, 1919, the Sylvan Arrow was under 
that portion of the exhibit which is designated the " bare- 
boat" form. By an affidavit sworn in this action on 
July 25, 1922, Mr. D. Kadcliffe for the plaintiffs stated 
that the plaintiffs were advised that the Sylvan Arrow 
had been requisitioned by the United States Government 
in December, 1917, and in the following July had been 
taken over by the Navy Department, and was released 
by the Navy Department early in 1919. It was upon 
the strength of that affidavit that the plaintiffs obtained 
leave to maintain the action, notwithstanding that more 
than two years had elapsed from the date of the collision. 
The requisition charter party exhibited is executed by the 
defendants and by the director of operations for the 
ch£ter Ulsition ^ n ^ e( ^ States Shipping Board. It is headed: "Requisi- 
tion charter," and begins: " This requisition charter made 
and concluded upon in the District of Columbia the 29th 
day of December, 1917." It recites: " Whereas by 
requisition order dated December 29, 1917, pursuant to 
the urgent deficiency act of the 15th of June, 1917, and 
the President's Executive order of the 11th July, 1917, 
the United States has requisitioned the use of the steam- 
ship Sylvan Arrow * * * and whereas it is desired 
* * * to fix the compensation which the United 
States shall pay to the owner for the use of the steamship 
so requisitioned and to define by agreement the rights 
and duties of the United States and of the owner with 
respect to the operation of the vessel under the requi- 
sition * * *" Now therefore it is agreed as follows: 



REQUISITION CHARTER 99 

u First. The terms and conditions under which the vessel 
is to be operated shall be those contained in the 'time 
form' hereto annexed; provided, however, that at the time 
of the requisition or at any time thereafter, on five days' 
written notice, the United States may operate the vessel 
under the terms and conditions contained in the 'bare 
boat form' hereto annexed." The time form contem- 
plates that the Government has taken possession of the 
ship and delivers possession back to the owner for the 
owner to operate the ship for the Government; under 
it the master and crew are the servants of the owner. 
The bare-boat form contemplates that the ship shal 
remain in the service of the United States under the 
requisition order, and provides that the United States 
shall man and operate the vessel. It is not quite clear, 
but I was told that in December, 1917, the ship was still 
in the builders' hands. From correspondence exhibited 
it appears that by direction of the United States Shipping 
Control Committee she was handed over to the Navy 
Department on July 15, 1918, and in the same month 
notice was given that the Government would operate 
the vessel under the "bare boat" form of charter. The 
precise status of the shipping control committee does not 
appear, but if it was not a branch of the United States 
Shipping Board or of the United States Shipping Board 
Emergency Fleet Corporation, the correspondence shows 
that its acts were ratified by the corporation. 

From all this I draw the conclusion that the ship was 
in fact compulsorily surrended by the owners to the 
United States Government. I am the more certain of 
this conclusion because the ship was an oil tanker. In 
1917-18 any shipowner who had a tanker free from 
Government control could have become "rich beyond the 
dreams of avarice." I see no reason why I should doubt 
the affidavits or the documents which state that the ship 
was requisitioned. It is said for the plaintiffs that no 
requisition order has been produced or disclosed, and it 
is suggested that in fact there was no order on December 
29, 1917. Whether an order was actually made or not 
does not seem to me to matter much. If the intention 
to make an order were intimated to the owner, it would 
be as effective a compulsion as if it were actually drawn 
up. The essential fact is that the owner entered into the 
charter party because the United States Government had 
power to compel him to give possession of the ship to the 



100 vessels: ownership, charter, and service 

Government. It was also said that the method adopted 
enYya°ct! deflci "by the Government was not in strict compliance with the 
urgent deficiency act, 1917. By section 1 (e) the Presi- 
dent is given power (inter alia) to requisition, or take 
over, the possession of * * * any ship now con- 
structed or in the process of construction. By section 2 
the President was given power to take immediate posses- 
sion if his orders were not obeyed. By section 3 just 
compensation was to be paid, to be determined by the 
President, with a power to sue to persons dissatisfied 
with the amount. By section 4 the President may 
exercise the powers through such agency or agencies as he 
shall determine. By Executive order the President dele- 
gated his powers to the United States Shipping Board 
and the Emergency Fleet Corporation. It is said that 
because the Government, instead of fixing the just com- 
pensation for the Sylvan Arrow, proceeded to enter into 
a charter party with the owner defining the hire and the 
other mutual obligations of the Government and the 
owner, the element of compulsion disappeared and the 
owner must be treated as one who had voluntarily 
chartered his ship to the Government. I can not agree. 
Underlying the whole transaction was the compulsion — 
the fact that the Government had and would have 
exercised the power to take possession of the ship whether 
the owner consented or not, and also had power to oper- 
ate the ship by its own servants if it so chose. I am not 
in the least suggesting that in fact the Government did 
not proceed in the precise way intended by the act; but, 
supposing it did not, the plaintiffs' case is no better, 
because if it exercised a compulsion illegally it exercised 
compulsion; if it exercised it legally it exercised com- 
pulsion. If it was illegal the position would be 
analogous to that of a ship which had been seized by 
pirates, in which case it could not possibly be suggested 
that the owner of the ship should, in form of procedure, 
be responsible for the negligent navigation by the pirates. 
Such being the position, it can not in any sense be said 
that the master and crew of the Sylvan Arrow, who were 
the servants of the United States Navy Department, 
derived their authority from the defendants, or that the 
defendants placed the ship in the possession and control 
of the Navy Department, or that the control of the ship 
was vested by the defendants in the Navy Department. 



LIABILITY FOR COLLISION 101 

Accepting the decision in The Lemington 83 and the dicta 
in The Ticonderoga, 73 The Tasmania 81 and The Ripon 
City 84 as sound law, the facts of the present case do not 
come within them. Upon those facts I hold that no 
maritime lien attached to the vessel by reason of the 
collision and that the defendants are not, either through 
their vessel or otherwise, responsible to the plaintiffs for 
the collision damage. There will be judgment for the 
defendants, with costs. 

n Swa. 215. 83 2 Asp. M. L. C. 475. 

" 13 P. D. 110. « [1897], P. 226. 



ARMED VESSELS 



H. M. SUBMARINE "E-14" 

([1920] A. C. 403) 

ON APPEAL FROM THE PRIZE COURT, ENGLAND 

Prize court — Prize bounty — Destruction of enemy trans-port — Enemy 
"armed ship"— Naval prize act, 1864 (27 and 28 Vict. c. 25), 
section 42 

An order in council of March 2, 1915, made pursuant to section 42 

of the naval prize act, 1864, provided for the payment of 

prize bounty to such of the officers and crew of any of H. 

M.'s ships of war as were present at the taking or destroying 

of any "armed. ship" of the enemy. 

In May, 1915, a British submarine torpedoed and sank a Turkish 
transport having on board 6,000 Turkish troops, who had 
with them rifles and ammunition, also six field guns so dis- 
posed on the ship's deck that, at suitable ranges, they could 
have been used with effect against the submarine. The 
ship was a Turkish fleet auxiliary manned by naval ratings 
and commanded by Turkish naval officers; she carried as 
part of her regular equipment a few light quick-firing guns. 
The officers and crew of the submarine applied to the prize 
court for prize bounty: 

Held, that the meaning of the words "armed ship" in section 42 
was not limited to a ship commissioned and armed for the 
purpose of offensive action in a naval engagement, and that 
the applicants were entitled to prize bounty under the order 
in council. 
Judgment of the prize court reversed. 

Present: Lord Sumner, Lord Parmoor, The Lord Jus- 
tice Clerk, and Sir Arthur Channell. 

Appeal from judgments of the admiralty division (in 
prize) dated February 21, 1917/ and November 25, 1918. 2 

The officers and crew of H. M.'s submarine E-14 by a 
motion in the prize court sought a declaration that they 
were entitled to £31,375 as prize bounty for the destruc- 
tion of the Turkish transport Guj Djeml on May 10, 1915. 
The prize bounty was claimed under an order in council 
of March 2, 1915, made in pursuance of section 42 of the 
naval prize act, 1864 (27 and 28 Vict. c. 25), which refers 
to the destruction of any "armed ship" of the enemy. 

1 [1917] P. 85. 2 Unreported. 



103 



104 



ARMED VESSELS 



Argument 
claimants. 



Argument 
Crown. 



The president (Sir Samuel Evans), by a judgment 
delivered on February 21, 1917, held that the meaning of 
the words " armed ship" in section 42 was "a fighting 
unit of the fleet, a ship commissioned and armed for the 
purpose of offensive action in a naval engagement." He 
found that the evidence before him did not bring the Guj 
Djemal within that description and dismissed the applica- 
tion, but without prejudice to the claimants renewing it 
upon any further evidence that might be forthcoming. 

The motion was renewed before the president (Lord 
Sterndale) on November 25,, 1918, further evidence being 
adduced. The effect of the evidence given upon the two 
applications appears from the judgment of their lord- 
ships. 

Lord Sterndale, P., considered that he was not at liberty 
to depart from the principles laid down in the decision 
above referred to, and held that the fresh evidence did not 
render the transport an " armed ship" within those prin- 
ciples. The motion was accordingly dismissed. 
^ October 21, 1919. Sir Erie Kichards, K. ft, and G. P. 
Langton for the claimants: Prize bounty was payable 
under the order in council, since upon the evidence the 
Guj Djemal was an " armed ship " of the enemy. There is 
nothing in the acts in force before the naval prize act, 
1864, nor in the decisions, which indicates that the mean- 
ing of the plain words used should be limited as held in 
the prize court. [Reference was made to Several Dutch 
Schuyts; 3 L'Alerte; 4 La Clorinde; 5 The Sedulous; 6 6 
Anne, c. 13, s. 8; 43 Geo. 3, c. 160, s. 37; 45 Geo. 3, c.72, 
s. 5; 17 and 18 Vict. c. 18, ss. 3, 11.] Prize bounty has been 
awarded under the order in council for the sinking of 
ships not coming within the principle applied in the 
present case — namely, a patrol ship and an armed mine 
layer: See H. M. Submarine E-ll, 7 and The Konigen 
Luise. 8 

Sir Gordon Hewart, A. G., and J. G. Pease for the 
respondent, the procurator general. The view of the 
late President as to the meaning of the words "armed 
ship" was right. The reference in section to "the begin- 
ning of the engagement" and the basis upon which the 



for 



3 (1805) 6 C. Rob. 48. 
* (1806) 6 C. Rob. 238. 
« (1814) 1 Dod. 436. 



• (1813) 1 Dod. 253. 

7 Lloyd's List, June 26, 1916. 

• Lloyd's List, Feb. 27, 1917. 



SUBMARINE E-14 105 

bounty is to be computed indicate that what was meant 
was a fighting unit of a fleet. In the unreported cases 
in which during the present war prize-bounty has been 
awarded for the destruction of patrol ships, minelayers, 
or armed auxiliary ships, the point that the order in 
council did not apply was not taken. 

December 3. The judgment of their lordships was Facts of case. 
delivered by — Lord Sumner: In this appeal the com- 
mander, officers and crew of H. M.'s submarine E-14 
seek, pursuant to 27 and 28 Vict. c. 25, s. 42, and the 
order in council dated March 2, 1915, to establish their 
right to a grant of £5 per head of the 6,000 Turkish 
troops, and of the 200 ship's complement, who were on 
board of the Guj Djemal, when they destroyed her with 
a torpedo in the Sea of Marmora, near Kalolimno Is- 
land, on May 10, 1915. The troops had their rifles and 
ammunition, and with them were six Krupp 75-mm. 
field guns, also with ammunition, and so disposed on 
the ship's deck astern that at suitable ranges they could 
have been used against the E-lJj. with effect. The ship 
herself was part of the Ottoman naval force, a fleet 
auxiliary manned by naval ratings and commanded by 
officers of the Navy of the Sublime Porte, and she carried 
a few light quick-firing guns as part of her regular 
equipment, with which she could defend herself if neces- 
sary. At the time in question she was acting as a 
troop transport, and this would appear to have been her 
regular employment. She was on her way to the 
Dardanelles, and it was known to the Turkish Govern- 
ment that British submarines had passed up the straits 
for the purpose, among others, of interfering with that 
traffic. 

By section 42 of the naval prize act, 1864, the right "Armed ship. - 
in question would attach if the Guj Djemal was, in the 
words of the section, "an armed ship of any of His 
Majesty's enemies." This is entirely a matter of con- 
struction of the section in its application to the facts 
of this case, and no other question was raised in the 
appeal. Little assistance, if any, is to be derived from 
prior decisions or earlier legislation. No decision before 
the war turned on or touched this section, and in the 
cases decided during the war the present contention had 
not been raised. The older acts go back for many genera- 
tions. At one time the number of guns, and not of men 



106 ARMED VESSELS 

carried by the ship destroyed, was the measure of the 
grant, and until the Crimean War the expression, " armed 
ship, " was not used. No settled practice was shown to 
have existed in the grant of "head money/' as it was 
called, that could be regarded as affecting the ordinary 
meaning of the words of the section, and no reasons of 
policy were suggested, which would point to an intention 
to use those words in one sense rather than in another. 

It is plain on the facts that the Guj Djemal was a ship, 
and a large one; that she was a ship of His Majesty's 
enemies, a unit in the Turkish fleet; and that she was 
armed. If then these single and undisputed facts are 
put together, she was in fact "an armed ship of His 
Majesty's enemies." Why was she not so within sec- 
tion 42 ? It is true that she was used to transport troops. 
It is true also that she got no chance to use her arms, 
or at least none that Turkish troops or seamen were 
minded to take; such is the nature of an injury by a 
well-placed torpedo. It is true that she did not go forth 
to battle, nor was she in any case fit to lie in the line, 
but the section says nothing about this. It may be that 
her regular service consisted in carrying troops and 
stores and that her combatant capacity was not high, but 
it can hardly be doubted that, if a suitable opportunity 
had occurred, it would have been her duty to fight and 
even to attack a hostile submarine. 

The contention presented on behalf of the Crown was, 
that her main character was that of a transport, and 
that the fact that she was armed was only an incident. 
The section, however, does not distinguish between the 
purposes for which the armed ship is armed, nor does it 
confer or withhold the grant according as the armament 
carried is the main or an incidental characteristic of the 
enemy sovereign's ship. The contention prevailed with 
the late president, who gave effect to it in the following 
words: 9 "An armed ship, within the meaning of the 
section to be construed, is a fighting unit of the fleet, a 
ship commissioned and armed for the purpose of offensive 
action in a naval engagement." 

Evidently this proposition is open to several objections. 
It makes the rights of His Majesty's forces depend on 
the purpose with which his enemies may have dispatched 
their vessel, on what either way is a warlike service. It 

» [1917], pp. 85, 89. 



OFFENSIVE ACTION 107 

employs a term, " offensive action," which, in practice, 
is of indefinite meaning, and in any case involves an 
inquiry into the state of mind of the hostile commander. 
Sir Samuel Evans elucidated his meaning thus in another 
passage: "In my opinion, if it were proved that she 
carried a few light guns, that would not constitute her 
an armed ship any more than a merchant vessel armed 
for self defense; nor would the fact that she carried 
troops armed with rifles and some field guns and other 
ammunition intended to be used after the landing of the 
troops." 

Their lordships are unable to accept these propositions. 
Of the case of a merchant ship they say nothing, for this 
is a question on the meaning of the words "ship of the 
enemy," and the appellants did not contend, nor needed 
they to do so, that any ship but one in state service would 
be covered by those words. There is again no evidence 
that the rifles and field pieces were not intended to be 
used at sea under any circumstances, little as any occasion 
for their use was to be looked for, and it must be recol- 
lected that defense is not confined to taking to one's 
heels or even to returning a blow, but, in the jargon of 
strategy, may consist in an offensive-defensive, or in 
plain words in hitting first. No criteria would more 
embarrass the application of the enactment than these, 
and to introduce the test of the ship's commission is to 
introduce something which involves a rewriting of the 
section. 

Their lordships are of opinion that the words of the sec- 
tion are plain, and that the facts fit them, and accordingly 
the appellants are entitled to succeed; that the decree 
appealed against should be set aside; and that this appeal 
should be allowed with costs, and that the case should be 
remitted to the prize court to make such formal decree 
in favor of the appellants as may be required. Their 
lordships will humbly advise His Majesty accordingly. 



108 



ARMED VESSELS 



IN THE MATTER OF THE NAVAL OPERATIONS IN 
MESOPOTAMIA, 1914-15 (H. M. S. "ESPIEGLE" AND 
OTHER VESSELS) 

([1923], P. 149) 

Prize court — Prize bounty — " Armed ship" of the enemy — Lighters 
carrying troops — Estimate of numbers of persons on board — Naval 
prize act, 1864 {27 and 28 Vict. c. 25), s. 42 

By an order in council of March 2, 1915, which put into operation 
section 42 of the naval prize act, 1864, prize bounty at the 
rate of £5 for each person on board the enemy's ship was 
payable to such of the officer and crew of any of His Majes- 
ty's ships of war as were present at the taking or destroying 
of any " armed ship" of the enemy: 

Held, applying the principles stated in H. M. submarine E. 14 [1920] 
A. C. 403, that it was not necessary for the ship herself to 
carry any armament structurally attached to her, and that 
enemy lighters carrying troops armed with rifles were 
" armed ships" within the meaning of the section. 

No accurate figures being available to establish the numbers of the 
persons on board the enemy vessels, the court, believing the 
claimants' estimate to have been made with the intention 
of accuracy, accepted it. 

Motion for an award of prize bounty in accordance 
with the provisions of section 42 of the naval prize act, 
1864 (put into operation by an order in council of March 
2, 1915), on behalf of Capt. Wilfrid Nunn, R. N., and the 
officers and ships' companies of various sloops, launches, 
and other craft, as being present at the capture or de- 
struction of the armed Turkish vessels set out in the fol- 
lowing schedule: 









Number 
of per- 
sons on 


Amount 


Name of H. M. S. 


Date of 
capture or 
destruction 


Name of enemy vessel 


of prize 

bounty 

at £5 


engaged 


captured or destroyed 


board 








enemy 
vessel 


per head 


H. M. S. Espiegle 


Nov. 9, 1914 


Turkish river gunboat 


12 


£60 


Do 


Nov. 19, 1914 


do... 


12 
166 


60 


Do 


[Turkish gunboat Marma- 


330 


H. M.S. Odin 


June 1 and 2, 
1915. 


ris. 
Turkish armed vessels 
Mosul and Bulbul. 


1230 
132 


1, 150 




160 


H.M.S. Clio... 




7 armed Turkish barges 


•714 


3,570 


H. M. S. Shaitan 




7 armed Turkish mahelas.. 


1315 


1,575 


Do 




(Armed Turkish vessel 


20 




H. M. S. Comet 


100 






Sebah. 






H. M. S. Sumarra 


June 3, 1915 


Armed Turkish vessel 
Samarra. 


26 


130 


H. M. S. Lewis Pelly.. 




Armed Turkish lighter 


1300 


1,500 


H.M.S. L. 3 




3 other armed Turkish 
lighters. 


1300 


1,500 


3 armed horse boats . . . 










H. M. S. Shushan 


July 24,1915 


Turkish river gunboat 


12 


60 


Total 


10, 195 






1 





i At least. 



OPERATIONS IN MESOPOTAMIA 109 

The facts are fully set out in the judgment. 

The claim was resisted by the Crown on the ground 
that the vessels were destroyed in the course of joint 
naval and military operations. It was also contended 
that as it appeared from the claimants' affidavits that 
some of the enemy vessels were lighters and mahelas not 
fitted with any armament, the mere fact that they were 
carrying troops armed with rifles was insufficient to make 
them " armed" vessels within the meaning of section 42 
of the naval prize act. The point was further taken that 
no accurate evidence was available as to the number of 
persons on board the enemy vessels. 

Wilfrid Lewis for the claimants. 

C. W. Lilley for the procurator general. 

[In the course of the arguments it was contended that 
the decision of the privy council in H. M. submarine 
E. 14 10 was not an authority for the proposition that a 
lighter carrying armed men was an " armed ship." Lord 
Sumner, in mentioning " troops armed with rifles," was 
merely going through the various sorts of armaments 
held by Sir Samuel Evans in the court below as being 
insufficient, in his opinion, to constitute an " armed ship " ; 
and Lord Sumner, dealing with the qualifications as a 
whole, said that their lordships were unable to accept 
those propositions. In fact the troopship sunk by the 
E. 14 had several light field guns on board.] 

March 5. The President (Sir Henry Duke) read the 
following judgment: These are a series of claims for 
prize bounty under the provisions of the naval prize act, 
1864, section 42, on behalf of Capt. Wilfrid Nunn, P. N., 
and the officers and crews of various sloops, launches, 
and armed horse boats in His Majesty's service which 
were engaged during 1914 and 1915 in operations on the 
River Tigris and Euphrates against naval forces of the 
Ottoman Empire. 

Prize bounty is payable under section 42 by distribu- 
tion among such of the officers and crews of any of His 
Majesty's ships of war as are actually present at the 
taking or destruction of any armed ship of any of His 
Majesty's enemies of a sum calculated at the rate of £5 
for each person on board the enemy's ship at the begin- 
ning of the engagement. By section 2 of the statute 
the term "ship of war of His Majesty" includes any 
vessel of war of His Majesty and any hired armed ship or 

10 [1920] A. C. 403, 



110 ARMED VESSELS 

vessel in His Majesty's service. Captain Nunn, as 
senior naval officer of the Persian Gulf division of the 
East Indies station, had under his command at the time 
of the various operations here in question a diversity of 
vessels, including horse boats, but there is no dispute 
that all the claimants' vessels come under the description 
of ships and vessels of His Majesty which are included 
in the provisions of section 42. 
statement of ^he operations for which prize bounty is claimed are 
facts. the sinking and destruction of a Turkish river gunboat 

on November 9, 1914, by H. M. S. Espiegle near Muham- 
march, on the Tigris, at a point distant some 40 or 45 
miles from the river mouth; the sinking on November 
19, 1914, by the Espiegle some miles farther up the 
Tigris of a Turkish gunboat, which was salved and be- 
came H. M. S. Flycatcher; the sinking of the Turkish 
gunboat Marmaris and capture of the steam vessels 
Bulbul and Mosul and the capture of numerous barges 
and mahelas on June 1 and 2, 1915, in the Tigris upriver 
from the junction of the Tigris &nd the Euphrates at 
Qurnah; the capture on June 3, 1915, at Amarah, some 
90 miles upriver beyond Qurnah, of various steam ves- 
sels and lighters; and the destruction on July 24, 1915, 
at Nasiriyah on the Euphrates, some 120 miles beyond 
Basra, of a Turkish river gunboat. The distances I 
have stated, which are roughly estimated, indicate the 
extent of Captain Nunn's field of operations. 

The questions raised at the hearing were whether the 
capture and destruction of the various vessels in respect of 
which the claims arise were effected solely by the respec- 
tive claimants or were joint operations of naval and mili- 
tary forces; whether the ships and vessels captured and 
destroyed were " armed," within the meaning of the term 
as used in section 42 ;"and what are the numbers in respect 
of which, if at all, these claims for prize bounty ought to 
be allowed. 

The duty of the naval forces in Mesopotamia in course 
of which the vessels under consideration were captured 
or sunk was that of cooperation with the military expe- 
ditionary force under the immediate command of Gen. 
Sir Charles Townshend. Apart from this general duty 
Captain Nunn, as senior naval officer, was under the 
orders of the commander in chief on the East Indies sta- 
tion and of the board of admiralty. 



Joint action. 



JOINT MILITARY ACTION 111 

The claims made in respect of the sinking on November 
9, 1914, of a Turkish gunboat off Muhammareh Island, 
the sinking on November 19, 1914, of another gunboat 
higher up the Tigris, the sinking on June 1, 1914, of the 
gunboat Mar maris, and the sinking on July 24, 1915, of 
an unidentified gunboat on the Euphrates were not dis- 
puted at the hearing. 

The allegation on the part of the Treasury that the 
events out of which the claims arise were joint acts of 
military and naval forces depended upon the scheme of 
the operations in which the same occurred and the terms 
in which the incidents themselves were described in mili- 
tary dispatches, the pronouns "we" and "ours" being 
used as to each of them, though without anything of a 
precise nature to indicate that the language employed 
was used with regard to things actually done by troops 
as distinguished from naval forces. The issue here 
depends upon ascertaining what was in fact done. At 
the end of May, 1915, when the Turkish forces retreated 
from Qurnah toward Basra, a combined advance of 
British troops and naval forces took place which covered 
the period of the disputed claims. The naval forces dur- 
ing this time reconnoitered for the army, conducted the 
transport operations when river transport was used, and 
from time to time successfully engaged Turkish naval 
forces and overtook and captured various vessels which 
were conveying Turkish troops and munitions — inclusive 
of field guns, bombs, mines, rifles, and ammunition. Sir 
Charles Townshend was, at material times, with an officer 
of his staff, on board whatever vessel was being used by 
the senior naval officer as his flagship, and other military 
officers were distributed among other vessels in the com- 
mand. The bridge of the flagship commanded the sur- 
rounding country, and the general used it for purposes of 
observation. His communication with his forces was to 
some extent maintained by wireless telegraphy from the 
flagship. He was kept informed* of what was being done 
under Captain Nunn's command, but he did not direct 
and he took no part in the operations of the naval force. 
On board one of the vessels was a detachment of an 
English regiment which had been detailed for service 
under naval command and which acted in the capacity 
of marines. The advance beyond Basra to Amarah was 
one in which the army and navy closely cooperated, and 
I believe the knowledge that troops were advancing was 
an inducement to the surrender by Turkish forces of some 



L12 ARMED VESSELS 

of the captured craft. But no troops were upon the scene 
when any of the sinkings and captures in question were 
carried out, and I am of opinion, upon like grounds of 
principle to those which I stated in the somewhat similar 
case of The Sulman Pak, 11 that these several sinkings and 
captures were solely effected by the respective claimants. 
Armed vessels. The question whether the lighters and mahelas in 
question were armed vessels is perhaps not directly 
covered by H. M. submarine E-14, 10 to which reference 
was made, but guidance is to be found there which helps 
in its determination. On behalf of the Crown it was 
submitted that only the gunboats manned by Turkish 
naval forces were " armed vessels/' so as to be the 
subject of claims for prize bounty. The material fact 
with regard to the lighters and mahelas here in question 
is that they were conveying armed troops who had at 
their disposal on board these vessels an abundance of 
weapons capable of being used for the destruction of His 
Majesty's ships and vessels which were in action against 
them. These troops with the weapons at their disposal 
could without any exceptional display of skill or courage 
have put out of action most, if not all, of the claimants. 
The substance of the question, as it was presented to me, 
was whether vessels so provided as these craft were must 
be excluded from the category of armed vessels by reason 
of the fact that they were not built for combatant action 
and had not at the time of their capture any armament 
which was structurally attached to them. Inasmuch as 
the several vessels were ships of the enemy, and in each 
instance carried troops " armed, or provided with arms," 
with which they could have fought and destroyed His 
Majesty's vessels (by which in fact they were destroyed 
or captured), I must decide this question in favor of the 
claimants. 

No accurate figures are available to establish the 
numbers of the persons who were on board the several 
enemy vessels described in the claim at the beginning of 
the various engagements. It is a matter of estimate, 
and, as I believe the estimate of the claimants to have 
been made with the intention of accuracy, I accept it. 
There will accordingly be awards in favor of the several 
claimants of the amounts stated in the schedule to the 
notice of motion. That will be a total award of £10,500. 

10 [1920] A. C. 403. " [1922], p. 73* 



DESTRUCTION OF TURKISH VESSELS 113 

IN THE MATTER OF THE DESTRUCTION OF CERTAIN 
ARMED TURKISH VESSELS (H. M. SUBMARINE «E. 12") 

([1924], P. 29) 

Prize court — Prize bounty — Armed vessels carrying munitions of 
war — Destruction of small Turkish sailing vessels — Armed ships 
of the enemy — Naval prize act, 1864 (27 and 28 Vict. c. 25), s. 42 

Acting on the instructions of the naval commander in chief, the 
claimants, the officers and crew of a British submarine, 
sank by gunfire a number of small Turkish sailing vessels 
engaged in carrying munitions of war to the Turkish military 
bases and arsenals in the Sea of Marmora. 

The vessels did not carry any armament structurally attached to 
them, but their crews were armed with rifles and, on each 
occasion when attacked, the crews took to their boats, got 
ashore, and opened fire on the submarine with their rifles. 

By an order in council of March 2, 1915, which put into operation 
section 42 of the naval prize act, 1864, prize bounty at the 
rate of £5 for each person on board the enemy's ship is 
payable to such of the officers and crew of any of His 
Majesty's ships of war as are present at the taking or 
destroying of any armed ship of the enemy: 

Held, that the inference to be drawn from the facts that the com- 
mander of the submarine had instructions to sink sailing 
craft of the sort in question and that in each case the crews, 
instead of scattering and making their escape, opened fire 
on the submarine, was that these sailing vessels had been 
taken under the control of the Turkish administration, and 
were not to be regarded merely as merchant vessels in 
private ownership engaged in the carriage of contraband. 
They were therefore ships of the enemy within the meaning 
of section 42. 

Held, further, that the vessels were armed ships when they were 
attacked, and that it would give too restricted an operation 
to the rights provided by the statute to hold that they had 
ceased to be armed ships because their crews with their 
rifles had left before the vessels were actually destroyed. 
The claimants, therefore, were entitled to an award of 
prize bounty. 

Motion for an award of prize bounty in accordance 
with the provisions of section 42 of the naval prize act, 
1864. 

The claimants, Commander Bruce, D. S. O., R. N., 
and the officers and crew of H. M. submarine E. 12, 
claimed declarations that they were entitled to awards 
of prize bounty in respect of the destruction in the Sea 
of Marmora, on September 21, 1915, of six Turkish 
sailing vessels with a complement of 30 men; and on 
October 5, 1915, of a steamship and 15 sailing vessels 
with a total complement of 70 men. 



114 



ARMED VESSELS 



Argument 
claimants. 



Argument 
Crown. 



Statement 
facts. 



The question at issue was whether the sailing vessels 
were to be regarded as ordinary merchant vessels engaged 
in run ling contraband cargoes or as armed ships of the 
enemy within the meaning of section 42 of the naval 
prize act, 1864. 

The facts are summarized in the headnote and are fully 
set out in the judgment. 

for Wilfrid Lewis for the claimants: The evidence in the 
possession of the commander in chief showed that vessels 
of this type were being employed by the Turkish naval 
authorities for the carriage of munitions of war; and it is 
immaterial whether they were state owned or merely char- 
tered by the state. Their crews carried rifles, and the 
vessels therefore were armed ships within the meaning of 
section 42 of the naval prize act: In the Matter of the 
Naval Operations in Mesopotamia, 1914-15. 12 If they 
were armed ships, however, it is submitted that they 
would come within the section even if they were owned by 
subjects of the enemy state. This question was left open 
by Lord Sumner in H. M. submarine E. H™ Although 
fire was opened from the shore, at the beginning of the 
engagement the vessels were armed, notwithstanding that 
the rifles then on board were not fired till a later stage. 

for Hilbery for the procurator general : These vessels were 
merely suspected of carrying munitions of war for the 
Turkish forces. There is no evidence that these small 
sailing craft were in the regular service of the enemy state 
or even that they had been pressed into that service. 
They would appear to have been ordinary merchant craft 
running contraband cargoes. Further, they were not 
armed ships when sunk or destroyed, and on that ground 
the case is distinguishable from In the Matter of the Naval 
Operations in Mesopotamia, 19 14-1 5. 12 

of October 19. The President (Sir Henry Duke) : 
These claims arise out of the action of H. M. submarine 
E. 12, which was detailed to enter the Sea of Marmora on 
various occasions when the approach was closed by naval 
defenses of the kind which during the war became familiar. 
The mere achievement of the passage into the Sea of 
Marmora conferred much distinction on the officers and 
men concerned, who had made a series of incursions 
before the raids now under consideration. 



12 [1923] P. 149. 



13 [1920] A. C. 403 



DESTRUCTION 

By September, 1915, acting on the information in his 
possession, Admiral de Kobeck, who was in command, 
gave personal instructions to Commander Bruce that 
there were certain classes of vessels with which he was to 
deal. I am satisfied that the commander acted on those 
instructions, and that so acting he destroyed and sank the 
vessels in respect of which the present claim is made. 
There is a claim in respect of the destruction on Septem- 
ber 21 of what are described as 6 armed Turkish sailing 
vessels, and a claim in respect of an operation on October 
5, where the service alleged to have been rendered is the 
destruction or sinking of an armed Turkish steamer and 15 
armed Turkish sailing vessels. The sailing vessels, as far 
as the information before me goes, were vessels cus- 
tomarily engaged in time of peace in commercial business 
in the Sea of Marmora; normally they were commercial 
sailing craft, and were said to be at the time in question 
engaged in carrying a arious munitions of war. I have 
no doubt that they were so engaged. The positions 
in which they were found — in one case returning appar- 
ently from a trip to Pan derma, where there were munition 
factories and arsenals, and on the other occasion going to 
or from Rodosto, where there were works used for military 
purposes by the Turkish authorities — make the character 
of their enterprise fairly clear, and they might have been 
captured as being vessels engaged in carrying contra- 
band of war. 

But that does not dispose of this question. In some of 
the evidence there was a disposition to lay much stress on 
the fact that these vessels were engaged in carrying 
munitions of war; but that fact does not by any means 
constitute them armed vessels of the enemy. Even if 
these were vessels carrying munitions of war, and having 
arms on board and using them, the strong impression on 
my mind is that those facts would not be sufficient 
to constitute them armed vessels of the enemy. 

Commander Bruce and his brother officer, Lieutenant 
Commander Fox, gave evidence, and Commander Bruce 
told me the instructions which he received. Before he 
got these orders there was reason to suppose that a sub- 
marine venturing near certain classes of craft in the Sea 
of Marmora, and neighboring waters, would be exceed- 
ingly likely to find herself sunk by gunfire, or a bomb, 
or by other fire if she were in a position in which gunfire 
was not practicable. The vessels in question might well 
have engaged submarine E. 12 with success. 



115 



116 ARMED VESSELS 

On September 21, 1915, Commander Bruce says he 
sighted six sailing vessels, and chased them into a small 
bay near Panderma. The crews, numbering four or five 
in each vessel, abandoned their ships and fled to the 
shore, and immediately opened fire upon E. 12 with 
rifles at a range of about 1,000 yards, and he says he 
sank the six. 

On October 5 the E. 12 sighted a small enemy steamer 
and 17 enemy sailing vessels in Rodosto Bay. The 
steamer was armed, and she was fired upon, and the 
only question with regard to her is whether she was 
destroyed. I will deal with that as a question of fact. 
It does not raise any matter of principle; she was un- 
doubtedly an armed vessel of the enemy. [His lordship 
held on the evidence that the steamer was destroyed.] 

The question against the claim in respect of the sailing 
craft is that they were being convoyed in the manner in 
which vessels are convoyed in time of war. The com- 
mander says in his affidavit that the crews of the steamer 
and the sailing ships abandoned their ships, and that 
" immediately the crews of the sailing vessels reached the 
shore they opened fire upon me with rifles, which said 
rifles I verily believe had been taken by the said crews 
from on board the said steamer and the said sailing 
vessels. Owing to the said rifle fire I was forced to keep 
2,000 yards from the said steamer and sailing vessels 
when engaged in destroying them. The crews of the 
said steamer and the said sailing vessels kept up a heavy 
fire upon me for about 30 minutes, when the battery at 
Erekli Point, about 5,000 yards distant, opened fire upon 
me; an enemy destroyer then appearing forced me to 
dive and to abandon the task of destroying the remain- 
ing two sailing vessels." Commander Fox, in respect 
of the proceedings on October 5, says: " The crews of the 
said steamer and the said sailing vessels landed at widely 
divergent points, and from each of the said points at 
which the crews of the various vessels landed, and from 
nowhere else, there immediately came an intense rifle 
fire, causing the E. 12 to stand off to a distance of 2,000 
yards whilst the work of destruction of the said steamer 
and the said sailing vessels was completed. From the 
intensity of the fire opened upon E. 12 I verily believe 
that there were at least 50 persons firing upon us." He 
corroborates Commander Bruce as to the other incidents- 



ARMED PERSONNEL 117 

The facts I have stated are the materials on which I 
have to come to a conclusion whether these sailing vessels 
were armed vessels of the enemy. At the hearing I 
found it a perplexing task. There was a simple set of 
facts with very rudimentary information, and the in- 
quiry is a serious one in point of principle. The amount of 
money involved here is not serious, but it is a serious 
thing to come to the conclusion, with regard to merchant 
vessels carrying men on board with arms, that they are 
to be taken by reason of that fact to be armed vessels of the sel 'g^ rmed ves ' 
enemy. It involves considerations quite outside those 
relative to the subject of naval prize bounty; it affects 
the whole status of persons engaged in commerce in time 
of war. 

It was argued with regard to the sailing vessels that 
they were not shown to be armed vessels of the enemy, 
and at any rate, as it stood on the evidence, that they 
were not armed vessels when they were sunk. If, how- 
ever, they were armed vessels when they were engaged 
it would take a great deal of argument to persuade me 
that I ought to assume that they had ceased to be armed 
vessels because certain men had left them with their 
boats and taken certain weapons. I should not decide 
the case upon any such ground as that; I think it would 
give too* restricted an operation to rights intended to be 
created by the naval prize act, and would introduce a 
fine point of law into what is really a broad question of 
fact. If the vessels were armed vessels at all I should be 
ready to find that they were armed vessels at the time 
that they were sunk. Were they armed vessels? There 
is no evidence that they had any mounted arms or that 
they had been fitted for naval warfare, but the authorities 
have acquiesced for some time in the view that that is not 
conclusive. Manned by men instructed in the use of 
and armed with rifles, they were vessels sufficiently 
armed to have sunk submarines. Submarines had to 
keep 2,000 yards away from the shore because of the risk 
of being sunk, and I come to the conclusion that these 
were at all material times armed vessels. 

The next question is whether they were armed vessels "Of the ene- 
of the enemy. I have said enough on the question of 
their being found with munitions, or material for the 
manufacture of munitions, on board, as to whether that 
would be sufficient to make them armed vessels of the 
enemy. I do not find that it would. But I must look 



118 ARMED VESSELS 

further than that. I must try to see whether these 
vessels had been taken up by the Turkish authorities 
and taken under their control, and put in a position for 
offensive or defensive operations as part of the service of 
the forces afloat engaged in the military service of the 
Ottoman Government. It is true that I have not much 
information, but I am struck, and the more I have 
reflected on it I have been the more struck, with the 
action of the crews of the several vessels on the several 
occasions as to which I have had evidence. On each 
occasion these men, who, on the hypothesis presented 
against the claim, are only seamen whose chief concern 
is to make their trip and to make it in safety, do not 
scatter and get out of the way, do not get into their 
boats and put up a flag or signal of some kind, but each 
vessel sends out an armed crew, positions are taken up 
along the shore, and rifle fire is opened upon the sub- 
marine and maintained, in the first instance until the 
operation of sinking these vessels is complete, and in the 
second instance until a fort at a distance of 2J^ naval 
miles opens fire upon the submarine, and a Turkish 
destroyer approaches with the probability of sinking the 
submarine. Is that like the conduct of merchant sea- 
men engaged in commercial traffic? I can not conceive 
that it is. I have the strongest possible suspicion, 
amounting in fact to conviction, that these men did 
what they were there to do. I do not regard the naval 
arrangements of the Turkish administration as I would 
regard the naval arrangements of an administration with 
a highly organized naval service, like those of the great 
European powers; it is not the same thing at all. On 
the hypothesis, a party of merchantmen are earning their 
daily bread on the sea, and yet they behave on successive 
occasions in the manner I have indicated, showing that 
they were an effective belligerent force. They engaged 
this submarine and might very well have sunk it. What 
does that mean? I should have had a very- definite 
suspicion as to what it meant without the affidavit of 
Sir Oswyn Murray, who spoke of this transaction as an 
"engagement," although the term is not used in any 
technical sense, but merely by way of description. I 
think he was perfectly accurate, and that there was an 
engagement, fought by armed ships which had been 
taken under the control of the Turkish administration 
by some means best known to themselves, and that these 



GOVERNMENT CONTROL 119 

had become armed vessels of the Turkish administration. 
But there is something more. Admiral de Robeck, 
before Commander Bruce and his comrades set out on 
this expedition, told them that certain craft were to be 
sunk. Nobody can suppose for a moment that an officer 
in His Majesty's service would be told to sink mere 
merchant ships, even though they were carrying contra- 
band. What does it mean? I have nothing beyond the 
plain evidence of the officers, and it seems to me that I 
must take it that these vessels, which were replenishing 
the stores of the arsenals and munition factories on the 
Sea of Marmora, were provided for in the way of defense 
by the Government which was using them, and that the 
practically certain consequence of the approach of a 
submarine was that they would endeavor to sink her by 
the various means with which they were supplied. That 
seems to me to be a strong circumstance in this case. 
There is much which is left to conjecture and presump- 
tion, but on the best consideration I can give to the case, 
and with no disposition to enlarge the provisions of the 
naval prize act by any careless consideration as to what 
are the circumstances under which prize bounty arises, 
I find that these sailing vessels were armed vessels of 
the enemy. 

There will be an award of prize bounty in the sum 
claimed, £500. 



SEARCH IN PORT 



„ 



THE "BERNISSE" AND THE "ELVE" 

([1920], P. 1) 

Prize court — Damages against the Crown — Diversion of neutral 
vessels — Absence of reasonable cause — Neutral vessels sailing from 
allied port — Order in council of February 16, 1917 — Practice — 
Stay of execution — Security for costs — Payment out. 

Two neutral vessels, bound from a French colonial port to Rotter- 
dam with cargoes of ground nuts, were stopped by a British 
cruiser just outside the area declared by Germany to be a 
prohibited area in which any neutral vessel would be liable 
to be sunk by German submarines. The vessels had all 
the requisite documents of clearance from the French 
port, including an "acquit a caution " — a document 
permitting the export of the cargo — but had not got the 
"green clearances" which were given to vessels which had 
called at a British port. 

By clause 1 of an order in council of February 16, 1917, 
adopting further reprisals against the unlawful acts of 
Germany, "a vessel which is encountered at sea on her 
way to or from a port in any neutral country affording 
means of access to the enemy territory without calling at 
a port in British or allied territory shall, until the contrary 
is established, be deemed to be carrying goods with an 
enemy destination, or of enemy origin, and shall be brought 
in for examination, and, if necessary, for adjudication 
before the prize court." The vessels were sent in for 
examination to Kirkwall, and when in the submarine 
area one of them was sunk by a German submarine and 
the other was damaged. In an action against the procurator 
general for damages: 

Held, (a) that the order in council had no application to a vessel 
which sailed from a British or allied port; (6) that the 
absence of the "green clearance" therefore afforded no 
reasonable ground for sending the vessels into Kirkwall; 
(c) that as no other reasonable ground was suggested, the 
Crown was in -the position of a wrongdoer and could not 
excuse itself from returning the vessels to their owners by 
the plea that it was unable to do so by reason of the wrong- 
ful or criminal act of the German submarines; and (d) that 
accordingly there must be a decree of restitution with costs. 

Held, further, that although the Crown obtained a stay of execution 
pending appeal, the plaintiffs were entitled to have the 
sums paid into court as security for costs paid out to them. 
33474— 25t 121 



122 SEARCH IN PORT 

Actions tried together for damages against the Crown. 

The plaintiffs were P. A. Van Es & Co., the owners, 
and the masters and crews of the steamships Bernisse 
and Elve. 

The defendants were "H. M. procurator general or 
other proper officer of the Crown in its office of Admi- 
ralty," and Commander William G. Howard, K. N., com- 
manding officer of H. M. S. Patia, and Lieut. Wilfrid E. 
Kogers, R. N. R. 

The plaintiffs claimed costs, expenses, losses, and 
damages occasioned by reason of the seizure of the 
respective vessels and their cargoes by H. M. S. Patio 
whilst, "with the license and authority of the French 
Government" they were sailing from a French port 
(Rufisque) to Rotterdam, and by their "unwarranted 
diversion from a safe channel of navigation to Kirkwall 
through an area which to the knowledge of the said 
captors was declared by Germany to form part of their 
blockade area to be entered into by neutral vessels at 
their own risk," and where the Bernisse was torpedoed 
and had to be beached and the Elve was torpedoed and 
sunk. 

By their answer the defendants pleaded that the state- 
ment of claim disclosed no cause of action. They alleged 
that the vessels were encountered on their way to Rotter- 
dam, "a port affording means of access to enemy terri- 
tory," and that the defendant Howard thereupon, 
through the defendant Rogers, ordered the vessels to 
proceed to Kirkwall for examination. The loss sustained 
by the plaintiffs was due to the action of the German 
submarines and not otherwise. 

The circumstances under which the vessels were 
seized are summarized in the headnote, and are fully 
stated in the judgment. 

pi£HL ent for Ma y 14 > 15 - Sir Erle Richards, K. C, and Bisschop 
for the plaintiffs. The vessels were bound from a French 
colonial port with documents which amounted to a 
license from the French Government to carry their 
cargoes to Rotterdam; the documents should have satis- 
fied the naval authorities and the vessels should have 
been allowed to proceed. They were outside the German 
submarine area when visited, and, even assuming there 
was a right of visit and search, the authorities had no 
right to send the vessels to Kirkwall for examination, and 
thus expose them to the risk of the German submarines. 



THE BERNISSE AND THE ELVE 123 

They' were small vessels and there was a smooth sea, and 
they ought to have been searched at sea. On the general 
right of search see " Diplomatic correspondence between 
the United States and belligerent governments relating 
to neutral rights and commerce," published in the Ameri- 
can Journal of International Law, volume ix, pages 55 et 
seq., and volume x, pages 73 et seq. and 121, the result 
of which is that H. M. Government admitted that if 
visit and search at sea are possible and can be made 
sufficiently thoroughly to secure belligerent rights, it 
would be a hardship on neutral vessels to compel them to 
go into port. See also Oppenheim's International Law, 
volume ii, page 539. 

There must be cause for suspicion before a neutral 
vessel can be sent into port, and if captors improperly 
and without reasonable cause, although through an honest 
mistake, seize a vessel which is not in fact open to any 
ground of suspicion, the captors are liable in damages 
and costs: The Ostsee. 1 It is contended by the Crown 
that these vessels were encountered on their way to 
Rotterdam, "a port affording means of access to enemy 
territory." That is a reference to the retaliatory order 
in council of February 16, 1917, but that order can not 
apply to these vessels as they left an allied port and 
therefore were under no obligation to call at a British 
port in the course of their voyage. The seizures were 
wrongful, and therefore the Crown is liable to the plain- 
tiffs for the loss of the Elve and the damage to the Ber- 
nisse. 

Sir Gordon Hewart, A. G., Sir Ernest Pollock, S. G., .Argument for 

77 7 7 defendants. 

and Bruce Thomas, for the defendants. The " acquit a 
caution" was merely a customhouse document, and the 
plaintiffs' evidence merely establishes that if stopped by a 
French cruiser the vessels " probably" would have been 
allowed to proceed. It was impossible, having regard to 
the German submarine peril, to examine any vessel, 
however small, at sea, and the naval authorities were 
bound to send all vessels into port for search. In fact, 
these vessels were " bound to a country which afforded 
access to enemy territory," and on the wording of the 
order in council it is at any rate an arguable question 
whether the order did not apply, although the vessels 
were bound from an allied port. But it is unnecessary to 
argue the question — the meaning and scope of the order 

> (1855) 9 Moo. P.O. 150. 



124 SEARCH IN PORT 

were fully argued in The Leonora 2 — for even if the order 
be held not to apply, damages would not be imposed 
upon the Crown as a consequence of the mistaken con- 
struction of the order: The Sigurd. 3 In The Ostsee 1 there 
was no possible right to detain the vessel as no blockade 
existed until some three weeks after the capture. That 
case, therefore, has no application to the present cir- 
cumstances. Unless the possession is tortious and un- 
justifiable the captors are not responsible: The Betsey;* 
see also The Maria 5 and The John* Even assuming the 
seizure and ordering into port were unjustified, they were 
not tortious acts, and the captors are not responsible for 
the consequence of the illegal acts of the Germans in 
committing acts of piracy contrary to all the principles 
of civilized warfare. 

[The President. If you take possession of a neutral 
vessel without any reasonable cause you are in no better 
position than that of a wrongful bailee of goods, and it is 
no answer to the owner of the goods to say that somebody 
else by a wrongful act has destroyed them.] 

The Crown was rightly in possession. There was 
clearly a right of visit and search, and the sending into 
Kirkwall was merely ancillary to and a prolongation of 
that right. See The Zamora. 7 It was in no sense a 
capture or seizure as prize. An officer should not be 
deprived of the benefit of his bona fides if in the course 
of exercising the right of visit and search he erroneously 
takes the view that further investigation is necessary. 
Further, in order to impose responsibility for the loss 
caused by the illegal acts of the Germans, it must be 
established that in sending the vessels into Kirkwall they 
were thereby exposed to greater risk. There is no evi- 
dence of that; the risk in searching them at sea would 
have been as great or greater, and they were equally 
exposed to submarine attack had they continued on their 
voyage to Rotterdam. 

Sir Erie Richards, K. C, replied. 

July 25. The President (Lord Sterndale). In this case 
a claim was made on behalf of the owners of the steam- 
ships Bernisse and Elve for damages against the Crown 
arising from damage to the Bernisse and the loss of the 
Elve, and the question which arises lies in a narrow com- 

1 (1855) 9 Moo. P. C. 150. * (1803) 4 C. Rob. 348. 

2 [1918] P. 182; [1919] A. C. 974. 6 (1818) 2 Dods. 336. 

3 [1917] P. 250. i [1916] 2 A. C. 77. 
* (1798) 1 C. Rob. 93. 



DOCUMENTATION 125 

pass but is not easy to decide. It is whether in the 
circumstances the Crown, acting by the admiral in com- 
mand of the cruiser patrol at the place where the vessels 
were stopped, had reasonable cause for detaining them 
and sending them into Kirkwall. 

The facts, so far as it is necessary to state them, are as fac s l t s atement of 
follows : The two vessels were small steamers of about 950 
tons gross, owned by P. A. Van Es & Co., and at the time 
were under charter to a firm called the N. V. O. Cie 
Fabriken Calve to carry a cargo of ground nuts from 
Rufisque, a port in the French colony of Senegal, to 
Rotterdam. The cargo was consigned to the N. O. T. 
and was shipped at Rufisque by a company called the 
Nouvelle Societe Commerciale Africaine. This company 
had obtained permission to export the nuts from the 
governor general of French West Africa, and the requisite 
documents of clearance, which will be more particularly 
described later, were obtained for the shipments. The 
two vessels made their voyages under the charter in 
company, and the facts as stated apply to both of them. 

This was the second voyage made by them to the port 
of Rufisque for a cargo of ground nuts. On the former 
they went by the southern route, i. e., through the 
English Channel, and were visited, but not searched, on 
the outward voyage. They loaded a similar cargo and 
left Rufisque on February 14. They obtained the fol- 
lowing documents: The declaration de simple exporta- 
tion, the manifeste de sorties, and what is called the 
acquit a caution. This is a document permitting the 
export of cargo on security being given by the shippers, 
guaranteed by a substantial firm of merchants that the 
cargo shall be delivered at the port of Rotterdam within 
three months. On the homeward voyage the vessels 
were visited in the Downs and the ships' papers ex- 
amined. After an interval of several days, which I was 
informed was increased by some misunderstanding as 
to the return of the papers, they were allowed to pro- 
ceed and arrived in Rotterdam and discharged their 
cargo. As I understand the evidence the cargo was 
kept under the supervision of the customs until it was 
certain that it was being used only for the purpose of 
being converted into oil in Holland, and was not being 
exported. On April 4, 1917, the vessels left Rotterdam 
in ballast on the second voyage, and on this occasion 
they took the northward route by the north of Scotland. 



126 SEARCH IN PORT 

They were visited by British cruisers on April 11 and 13, 
but were allowed to proceed, and arrived at Rufisque on 
April 25, 1917. There they again loaded a cargo of 
ground nuts, and left for Rotterdam on May 2, 1917, 
carrying the same papers as on the former voyage. It 
was not disputed that these papers were in order for a 
vessel leaving the port of Rufisque. The vessels again 
took the northward route, and on May 20 were stopped 
by H. M. S. Patia and boarded by an officer from her. 
They were stopped in latitude 62° 4' N. and longitude 
15° 10' W., which is just outside the area declared by the 
Germans to be prohibited, and one in which any vessel 
was liable to be torpedoed and destroyed by submarines. 
After examination of their papers and some communica- 
tion between the boarding party and the cruiser, and the 
cruiser and the admiral, they were ordered into Kirkwall. 
The masters protested, because their course to Kirkwall 
would take them through the prohibited area and expose 
them to danger from submarines, but they were told 
that they must go, and that a wireless message had been 
sent into Kirkwall for an escort. They therefore pro- 
ceeded, each having a British officer and some men on 
board who took charge of the ship, and on May 23 they 
were attacked by a German submarine, which torpedoed 
both vessels, with the result that the Elve sank and the 
Bernisse was badly damaged, but succeeded in continu- 
ing her voyage to Kirkwall. There she was temporarily 
repaired and eventually reached Rotterdam. It was 
stated that the submarine fired on the crew as they were 
getting into, and while in, the boats, but no lives were 
lost. It was for this loss and damage that this claim 
was made, and the liability of the Crown seems to me to 
depend upon whether there was reasonable ground for 
detaining the vessels and sending them into Kirkwall. 
It was argued on behalf of the Crown that there was no 
liability unless the result of the order was to expose the 
vessels to greater danger than they would have incurred 
if not sent into Kirkwall, and that the danger from sub- 
marines was just as great on the ordinary course to Rot- 
terdam as on that to Kirkwall. I do not think that this 
argument is well founded. If the Crown had no reason- 
able grounds for taking possession of the vessels and 
diverting them from their course it is a wrongdoer, and 
can not excuse itself from returning the property to the 
rightful owners by saying that it can not do so by reason 



SPECIAL PAPERS 127 

of the wrongful or even criminal act of a third person. 
(See Tie William* and Pratt's Story, p. 39.) But if it 
be necessary to determine the question, I have no hesita- 
tion in finding that although there was danger from 
submarines outside the prohibited area, it was much 
greater within, and that therefore, by reason of the 
action of the Crown the vessels were exposed to greater 
danger. 

It is therefore necessary to consider whether there was J£ amination ,n 
any reasonable cause for putting the vessels in charge of 
a British officer and crew, and taking them into Kirkwall. 
In my opinion this depends upon the question whether 
in the circumstances the absence of what is called a green 
clearance formed such a justification. Wider questions 
were argued during the case involving the whole question 
of the rights of a belligerent to send a vessel into port for 
examination instead of examining her at sea, as was the 
practice in former times. I do not think this case raises 
that question, for I am satisfied upon the evidence that 
the officer who stopped the vessels was satisfied that 
there was nothing connected with the papers, or the 
cargoes of the vessels, which required further search to 
be made, and that no one considered that there was any 
reasonable ground for detaining the vessels any longer, or 
sending them in for examination, except the absence of 
the so-called green clearance. I shall deal with the 
evidence on this point later. A green clearance is a card, 
so called from its color, employed during the war to show 
that the vessel to which it is given has been cleared either 
from a British port of departure or a British port of call, 
and derives its importance in this case from the provisions 
of an order in council of February 16, 1917, which recites 
what is declared to be the improper and unlawful action 
of Germany and the necessity for further reprisals than 
had been taken before, and then proceeds: "A vessel 
which is encountered at' sea on her way to or from a port 
in any neutral country affording means of access to the 
enemy territory without calling at a port in British or 
allied territory shall, until the contrary is established, be 
deemed to be carrying goods with an enemy destination, 
or of enemy origin, and shall be brought in for examina- 
tion, and, if necessary, for adjudication before the prize 
court.' ' The green clearance shows that a vessel has 
either come from or has called at a British port, but it is 

» (1806) 6 C. Rob. 316. 



128 SEARCH IN PORT 

to be observed that a vessel which has called at an allied 
port has complied with the conditions of the order just 
as much as one which has called at a British port, and 
yet such vessel will not have a green clearance, but some 
clearance corresponding to it according to the law of the 
allied nation to which the port belongs. 

The facts so far as it is necessary to state them are as 
follows: When the vessels were stopped a lieutenant, 
B,. N. B,., was sent from the British cruiser and boarded 
the vessels. He examined the papers, and it is not dis- 
puted that so far as they went they were in order, but 
there was no green clearance. Amongst them was the 
document previously mentioned, called an acquit a 
caution, which has been translated as an acknowledgment 
subject to security. It is not a very legible document, 
but no objection was taken to it on that ground, and 
there was no suggestion that the officer did not read it 
and understand it. In effect it was a clearance of the 
goods and a permit to export them subject to an under- 
taking by the shippers, guaranteed by a substantial firm 
of merchants as to the destination of the goods. It also 
contained a statement that an authority to export the 
cargo of nuts had been obtained from the governor gen- 
eral. By the bills of lading the goods were consigned to 
the N. O. T., and the papers showed a shipment at, and 
a voyage from, a French colonial, and therefore an allied 
port, with all the regular clearances and papers neces- 
sary in the circumstances. Acting on instructions the 
lieutenant asked if the master had a green clearance and 
was told he had not, and he reported the whole facts to 
the commander of the cruiser. The commander of the 
cruiser thought the case was an exceptional one and 
therefore communicated with the admiral to know what 
he was to do, giving to the admiral all the information 
which he himself had, and received in answer an order 
directing him to send the vessels into Kirkwall. An 
armed party was then put on board and they proceeded 
on the voyage to Kirkwall. The evidence of the com- 
mander of the cruiser is, in my opinion, so important on 
the question of the reasons for sending the vessels to 
Kirkwall that I propose to give it in some detail. [His 
lordship read the evidence and continued:] This evidence, 
in my opinion, shows clearly that the vessels were not 
sent in for search in the ordinary sense of the word and 
that the officers concerned were of opinion that there was 



SENDING TO KIRKWALL 129 

no reason for detaining them, or sending them in, except 

the absence of a green clearance. It also shows, in my 

opinion, that in sending them in the officer concerned 

did so in execution of the powers of the order in council 

of February, 1917, and for no other reason, and therefore c n, February, 

I think the issue in the case is narrowed to the question 

whether there was reasonable ground for thinking that 

the provisions of the order in council applied to this case. 

I have already pointed out that a vessel might strictly 
comply with the conditions of the order by calling at an 
allied port and still have no green clearance, but it seems 
to me clear that the order has no application to a vessel 
which leaves a British or allied port and that such a 
vessel is not obliged to call at another British or allied 
port in order to escape the presumption raised by the 
order in council and the consequent sending in for ex- 
amination and possible adjudication. I am therefore 
of opinion that the absence of a green clearance afforded 
no reasonable ground for sending these vessels to Kirk- 
wall, and as no other reasonable ground was suggested 
I think there must be a decree of restitution with costs. 
I do not think there is any ambiguity or difficulty in the 
terms of the order in council and that it clearly did not 
apply to this case. 

My judgment is based entirely upon the conclusion I 
draw from the evidence in this particular case that the 
vessels were not sent in for search in the ordinary way, 
that the officers were satisfied that there was no ground 
for so sending them in, and that the sole cause for so 
doing was that they were considered to come within the 
provisions of an order in council which had no applica- 
tion to the case. It has no relation to the general 
question of the right to search a vessel in port instead of 
at sea. 

Leave to admit an appeal, 

33474— 25t 10 



ENEMY VESSELS AND CARGO 



THE "BLONDE" AND OTHER SHIPS 

([1922] 1 A. C. 313) 

ON APPEAL FROM THE PRIZE COURT, ENGLAND 

Prize court — Outbreak of war — German ships detained in British 
ports — Requisition — Owners' rights to release — Applicability of 
Hague convention — German misconduct of war — Effect of peace 
treaty — Treaty of Versailles, Part VIII, annex 3, article 1; 
Part X, article 297 — Hague convention No. VI, articles 1, 2, 6. 

Article 2 of Hague convention No. VI, provided that a belligerent 
may not confiscate an enemy merchant ship detained in the 
belligerent's port at the commencement of hostilities, but 
may "merely detain it, on condition of restoring it after the 
war, without payment of compensation, or he may requisi- 
tion it on condition of payment of compensation." 

The applicability of the above article between two belligerents does 
not depend upon whether they have mutually agreed to 
allow days of grace as contemplated in article 1; article 2 
is obligatory, while article 1 is optional. Whatever may 
be the true meaning of the condition in article 6 that the 
convention is to apply only "if all the belligerents are 
parties," Great Britain during the recent war frequently 
recognized that the convention was binding, and thereby 
waived the right to rely upon nonfulfillment of the condition. 

The conduct of Germany during the war in committing many acts 
in flagrant defiance of the Hague conventions does not pre- 
vent article 2 of the sixth convention from being binding 
upon Great Britain. Apart from considerations of munic- 
ipal law, it is not the function of a prize court, as such, to 
be a censor of the general conduct of a belligerent, as distinct 
from his dealings in the particular matters before the court, 
or to sanction disregard of solemn obligations by one bellig- 
erent because it reprehends the whole behavior of the other. 

Where a detained ship has been requisitioned under Order XXIX of 
the Prize Court Rules, 1914, and sunk, the German ownei, if 
entitled to restoration under article 2, is entitled to the 
appraised value as the compensation provided for by 
article 2, and that right exists although the ship was sunk 
by German hostile action. 

Part VIII, annex 3, article 1, of the treaty of Versailles operates to 
transfer to the allied and associated powers the property 
in all German ships of 1,600 tons and upward. The former 
owners of ships of that tonnage therefore have no locus 
standi before the prize court under article 2 of the sixth 
convention, nor right to discuss how those powers may deal 
inter se with the ships. But annex 3 effects no transfer of 
ships of lesser tonnage, at least until selected for surrender. 



131 



132 - ENEMY VESSELS AND CARGO 

Article 297 of the treaty does not annul or modify the obligations 
under the convention. The claim of Great Britain there- 
under to retain ships to the release of which the German 
owners are entitled under article 2 of the convention is not 
one for determination by the prize court, but orders of the 
prize court for release should contain a provision to prevent 
rights under the treaty from being defeated. 

Three ships, each of under 1,600 tons gross, owned by a Danzig 
corporation and detained in a British port at the commence- 
ment of hostilities, were requisitioned under Order XXIX 
for the service of the Crown; while so requisitioned one of 
the ships was lost by grounding, and one by German 
hostile action. Applying the various considerations above 
stated, an order was advised that the appraised value of 
the two lost ships, and the ship remaining in specie, be 
released to the custodian of enemy property to be de- 
livered to the Danzig corporation, if after six months no 
proceedings had been begun for delivery to the Crown, 
otherwise to abide the final determinations of those pro- 
ceedings. 

Judgment of the prize court [1921] P. 155 reversed. 

Further advised, on petitions, that certain German ships of 1,600 
tons gross and upward detained as above should be re- 
leased to the Crown, the orders for detention being dis- 
charged. 

Appeal from a judgment of the admiralty division (in 
prize) delivered on January 23, 1921; 1 also, petitions 
and cross petitions for the release or condemnation of 
enemy ships. 

The appellants, a corporation registered at Danzig, 
appealed from a decree of the president (Sir Henry Duke) 
condemning the steamships Blonde, Hercules, and Prosper. 
The ships were registered at Danzig, and were respec- 
tively of 613, 1,095, and 759 tons gross. They were 
seized in British ports in August, 1914, upon the com- 
mencement of hostilities with Germany. In January, 
1915, the prize court made orders in the form in The 
Chile 2 for the detention of the ships until further orders. 
They were requisitioned for the service of His Majesty 
by orders made by the prize court under Order XXIX 
of the Prize Court Rules, 1914. While under requisi- 
tion the Blonde had been lost by grounding and the 
Hercules was sunk by an enemy torpedo. 

Upon application by the procurator general in 1920 
for condemnation of the ships, the president (Sir Henry 
Duke) held that the special provisions in the treaty of 
Versailles as to Danzig left the appellants, for the pur- 

' [192J] r. 155. 2 [1914] P. 212. 



THE BLONDE AND OTHER SHIPS 133 

pose under consideration, in the same position as if 
they had remained German subjects; and, following 
his decision in The Marie Leonhardt, 3 he held that in 
the absence of agreement between Great Britain and 
Germany to the contrary, German merchant ships 
found in British ports at the commencement of hostili- 
ties were subject to condemnation. The learned presi- 
dent accordingly condemned the ships; the present 
appeal was from that decree. 

There were also before the privy council petitions and 
cross petitions relating to the Gutenfels and certain other 
German steamships. In the case of each of these ships 
the privy council upon appeal 4 had made order, similar 
to the order in The Chile, 5 for detention until further 
orders. The present petitions and cross petitions were 
on the part of the respective owners for the release of 
the ships, and on the part of the Crown for their con- 
demnation. Each of these ships was of over 1,600 tons 
gross. The arguments were heard together with those 
in the appeal, and the present judgment of the judicial 
committee in the appeal deals also with the petitions and 
cross petitions. 

The Hague Convention, 1907, No. VI, provided (inter ti * a ^f Conven 
alia) as follows: 6 Article 1: "When a merchant ship 
belonging to one of the belligerent powers is at the 
commencement of hostilities in an enemy port, it is 
desirable that it should be allowed to depart freely, 
either immediately, or after a reasonable number of 
days of grace * * *." Article 2: "A merchant ship, 
which, owing to circumstances beyond its control, may 
have been unable to leave the enemy port within the 
period contemplated in the preceding article, or which 
was not allowed to leave, may not be confiscated. The 
belligerent may merely detain it, on condition of re- 
storing it after the war, without payment of compensa- 
tion, or he may requisition it on condition of paying 
compensation." Article 6 : " The provisions of the present 
convention do not apply except between contracting 
powers, and then only if all the belligerents are parties 
to the convention." 

3 [1921] P. 1. 

« E. g. [1916] 2 A. C. 112; [1918] A. C. 500 and 501w. 
» [1914] P. 212. 

8 The official English translation auDears in the Blue Book, Miscellaneous, No. 6 
(1908) |Cd.4175.] 



134 ENEMY VESSELS AND CARGO 

saines aty of Ver " B y th e treaty of Versailles, 1920, Part VIII, annex 3, 
Article 1, Germany ceded to the allied and associated 
powers all German merchant ships of 1,600 gross tons and 
upward, and an unascertained moiety of certain smaller 
ships. By Part X., Article 297, the allied and associated 
powers reserved the right to retain and liquidate all 
property, rights, and interests witnin their territories 
belonging to German nationals. By Part III, Articles 
100-109, Danzig was constituted a free state, and special 
provisions were made as to property within its territory. 
By Article 105 the ordinary residents of Danzig were to 
lose their German nationality, in order to become nationals 
of Danzig. 

appelant^ for 1921 > October 28, 31; November 1. Sir John Simon, 
K. C, and Inskip, K. C, (Balloch with them) for the 
appellants. The appellants are entitled to the release of 
the Blonde, and to the appraised value of the Prosper and 
Hercules under Article 2 of Hague Convention No. VI. 
That article applies whether or not there was an agree- 
ment between Great Britain and Germany to allow days 
of grace as contemplated by Article 1. That point was 
raised in argument in The Gutenfels ; 7 it was alluded to in 
the judgment but not decided. In The Turul 8 the 
judicial committee regarded Article 2 as not being de- 
pendent upon Article 1. The appellants' contention on 
this point was not urged before the president, because in 
The Marie Leonhardt, 9 and other cases the president had 
given effect to a different view. Apart from the con- 
vention, the diplomatic correspondence between Great 
Britain and Germany during the early months of the war 
amounted to a mutual agreement to restore ships detained 
in port at the outbreak of war. Article 6 does not pre- 
vent the convention from applying. Both Great Britain 
and Germany were parties to it when the ships were 
detained; it is not material that certain countries which 
became belligerents during its progress were not parties. 
A contrary view would lead to curious results, as was 
pointed out in The Mowe. 10 The convention rested 
principally upon compromise, and could not be expected 
to exhibit the comprehensiveness of a code : Procurator in 
Egypt v. Deutsches Kohlen Depot. 11 The right to restora- 

^ [1916] 2 A. C. 112, 116, 119. i° [1915] P. 1, 12. 

8 [1919] A. C. 515, 518. « [1919] A. C. 291, 301. 

8 [1919] P. 1. 



APPLICATION OF TREATIES 135 

tion under the convention or agreement is not affected by 
the provisions for the cession of ships and property con- 
tained in the treaty of Versailles. By the treaty the 
ships became vested in nationals of the Free State of 
Danzig created by it, and no right to condemn arose till a 
later date. The effect of the treaty was to recognize that 
the property of the appellants as a Danzig corporation 
was free from the incubus of German ownership. In any 
case the provision as to the cession of ships does not apply, 
since all these ships are under 1,600 tons gross. Having 
regard to Order XXIX, Rule 4, of the Prize Court Rules, 
1914, the appellants are entitled to the appraised value • 
of the ships sunk while requisitioned. 

Sir Ernest Pollock, S. G. (Sir Gordon Heward, A. G., r£wnT nt '° r 
and Wylie with him) for procurator general, respondent 
to the cross appeals. The three ships, as enemy ships 
seized in port at the outbreak of war, are subject to 
condemnation in the absence of any agreement to the 
contrary: Lindo v. Rodney. 12 There was no agreement 
to the contrary by virtue of either the convention, or the 
correspondence relied on. Articles 1 and 2 of the con- 
vention must be read together; article 2 does not apply 
unless an agreement has been made as to days of grace. 
That view was conceded in The Marie Leonhardt 3 ; there 
is no decision of the judicial committee to the contrary. 
Further, the convention did not apply because the con- 
dition in article 6, namely, that all the belligerents should 
be parties, was not fulfilled. The United States were not 
parties; nor were Serbia, or Montenegro, all of which 
countries were belligerents. The words "all the bel- 
ligerents " in article 6 can not be limited to those who were 
belligerents at the time of the seizure. That view was 
indicated in The MoweP The correspondence relied on 
did not amount to the agreement alleged. The essential 
character of agreements of this kind is reciprocity: The 
Santa Cruz. u (1) In The Gutenfels 15 it was said that the 
convention involved a " reciprocal obligation," and the 
question whether article 2 applied was left open to see 
whether Germany observed her position of reciprocity. 
Germany did not do so. As appears from a communica- 
tion to Madrid in October, 1915, Germany planned to 
recover retained ships visiting neutral ports while requisi- 
tioned. That was a repudiation of article 2, which 

3 [1921] P. 1. M (1798) 1 C. Rob. 49, 62. 

12 (1782) 2 Doug. 212n. i« [1916] 2 A. C. 112, 119. 

13 [1915] P. 1. 



136 ENEMY VESSELS AND CARGO 

recognized the right to requisition retained ships. By a 
note addressed to Siam on March 30, 1917, Germany 
maintained, in answer to neutral protests, that the con- 
vention was not binding upon any of the belligerents. 
These repudiations put an end to any obligations on the 
part of Great Britain to Germany under the convention, 
or under the agreement, if there was one. Further, in 
the course of the war Germany by her conduct showed 
an intention not to be bound by any convention or 
agreement. 16 That released the obligation of this coun- 
try. It is not contended that there arose a right to 
• retaliate, but that there ceased to be that continued reci- 
procity by Germany which was a condition to the con- 
vention being binding. The observations in The Nereide ll 
are therefore not applicable. The appellants were Ger- 
man nationals until the treaty made them nationals of 
Danzig; for the purpose now considered they are in the 
same position as if they were still Germans. 

Sir John Simon, K. C, in reply: The prize court is 
not entitled to survey the conduct of Germany to see if 
the sixth convention should be applied. There is no 
evidence that Germany refused to be bound by article 2. 
The claim to retain the ships under the treaty is not one 
for the prize court to determine. 

Upon the petitions and cross petitions there appeared: 

Sir Gordon Hewart, A. G.; Sir Ernest Pollock, S. G., 
with Darby, Wylie, Trehern, Pearce Higgins, and H. L. 
Murphy in the several cases. 

Sir John Simon, K. C; Inskip, K. C, and Balloch for 
the shipowners. 

1922, February 10. The judgment of their lordships 
was delivered by — 
Judgment of Lord Sumner: These are consolidated appeals from the 
statement of president's judgment rejecting the claims of the appellant 
company for release with compensation and condemning 
the vessels in question, the Blonde, the Prosper, and the 
Hercules. They were small German steamers, two under 

19 The record (pp. 34 to 65) contained an affidavit by the procurator general which is of 
historical value. It set out, with particulars as to dates and statistics, misconduct by 
Germany under the following heads: (a) sinking by submarines of merchant ships 
(including passenger ships) and fishing vessels, without warning and with consequent 
loss of civilian lives, including women and children; (b) sinking by submarines of hospital 
ships with loss of life; (c) bombardment of undefended coastal towns by naval forces; 
(d) air raids on undefended towns and cities with loss of civilian inhabitants; (e) promis- 
cuous laying of mines and consequent sinking of neutral and other ships; (/) compulsion 
of population of occupied territories to take part in military operations against their 
country; (g) deportation, enforced labour, and unjustifiable penalties inflicted on those 
populations; (ft) use of poison gas and liquid fire. Provisions of the Hague conventions > 
1899 and 1907, which werei nfringed by the above acts were set out in the affidavit. 

u U81/0 Cranch, 388. 422. 



facts. 



DAYS OF GRACE 137 

800 and one under 1,100 tons gross, which at the out- 
break of the war happened to be in London and Liverpool, 
and were seized and proceeded against in prize. Orders 
were in due course made for their detention in the form 
which was settled in The Chile, 2 and followed in many 
cases during the war. Shortly afterwards they were 
requisitioned by order of the court for the use of His 
Majesty, and passed into the service of the admiralty. 
Two have since been lost while under requisition — the 
Blonde by grounding off Flamborough Head, and the 
Hercules through being struck by an enemy torpedo. 
The Prosper still remained in the hands of the Crown 
under the requisition order at the time when the case 
was heard. 

The appellants are a shipping company registered and 
carrying on business at Danzig, where the ships also were 
registered, and at the outbreak of war they owned a 
number of the shares in each vessel, though not all; 
but they have been throughout treated as the full owners 
for all present purposes. Danzig having become a free 
city under the treaty of Versailles, the appellants, as 
citizens of Danzig, claim to be in a better position in 
these proceedings than if they had still been subjects of 
the German Empire, and no point has been taken on 
behalf of His Majesty's procurator general that, as 
Danzig was not a party to The Hague conventions, citizens 
of Danzig should not be allowed to claim the benefit of 
them. All that is said is that, in respect of Germany's 
actions during the war, the appellants, as they enjoyed 
the benefit, must also take the burden, although, as 
regards disabilities and liabilities imposed on Germany by 
the terms of the treaty of Versailles, they may escape, 
having ceased to be Germans at the moment when the 
treaty first became operative. The principal point is 
one turning on The Hague conventions of 1907, which, 
though not argued below owing to some misunderstand- 
ing as to the state of the authorities, must be dealt with 
on one or other of the present groups of appeals. The 
appellants claim the benefit of the sixth convention, or 
in the alternative of a supposed agreement to the like 
effect, arrived at ad hoc by Great Britain and Germany 
in the early months of the war. The procurator general 
denies that the sixth Hague convention ever became ap- 

J [1914] P. 212. 



138 ENEMY VESSELS AND CARGO 

plicable, first, for want of ratification by all the belliger- 
ents, and secondly, because article 1, on which the 
appellants rest their claim, would only apply if Great 
Britain had put article 2 in force, which never was done. 
As to the supposed agreement ad hoc, he says that the 
negotiations were entered into for other purposes and, 
further, broke down without conclusion. 

g race? rofdaysof Tne history of the matter is this. Early in August, 
1914, pursuant to an order in council of August 4, a 
proclamation was issued, which declared that German 
ships in British ports would be detained, but that His 
Majesty proposed ultimately to apply the sixth Hague 
convention, provided that a secretary of state certified 
before midnight of August 7, that he was satisfied, from 
communications received, that Germany had expressed 
a similar intention. This period expired without the 
receipt of any sufficient communication, and the fact 
was duly intimated to the admiralty. Thereupon, it is 
said, the sixth Hague convention, so far as Great Britain 
and Germany were concerned, failed to come into oper- 
ation, and accordingly the provisions of article 2 had 
no effect in the late war. 

reSond^ a ce. ccor " ^ n s pit e °f this notice to the admiralty, communi- 
cations passed between the two powers through the good 
offices of the diplomatic service of the United States. 
Letters and telegrams were exchanged, and sometimes 
they crossed one another. The German Government 
were concerned not merely as to the treatment of de- 
tained ships under the sixth convention, but also as to 
that of the crews under the eleventh. They asked 
whether His Majesty's Government intended to observe 
the provisions of these conventions, and in what sense 
they understood some of their obscurer terms. By the 
end of September or the beginning of October both parties 
had stated distinctly that the sixth convention would be 
observed, and had expressed their construction of it, in 
senses which were substantially identical. As to the 
eleventh, though not far apart, it does not appear, on 
the documents which are forthcoming, that they were 
ever in absolute accord. Their lordships were not in- 
formed that His Majesty's Government ever published 
this correspondence at the time as the formal record of a 
new agreement therein arrived at. 

The learned president came to the conclusion that this 
correspondence, viewed as a negotiation for a final agree- 



DIPLOMATIC CORRESPONDENCE 139 

ment, never passed beyond the stage of mere negotiation, 
the discussions as to the two conventions not being 
severable and no agreement having been arrived at as 
to the eleventh convention. The contrary was strenu- 
ously urged before their lordships. Logically, however, 
there is a prior issue — namely, whether this correspond- 
ence was entered upon or was pursued as a negotiation 
intended to lead to a new international agreement at all. 
The treaties and conventions which courts of prize are 
accustomed to construe and give effect to are written 
instruments duly executed and ratified. It is a novelty 
to call on them to spell out such an agreement from a 
series of messages passing to and fro. Here there is not 
so much as a protocol, and although no doubt consensus 
ad idem is fundamentally necessary to an international 
agreement, as it would be to a private offer and accept- 
ance under municipal law, it does not follow that in the 
intercourse of sovereign States every interchange of 
messages, some formal and some informal, should be 
deemed to result in a new and binding agreement as soon 
as the parties have reached the stage of affirming identical 
propositions. Each power was anxious to know the 
intentions of the other, and in their lordships' opinion 
their object, and their sole object, was to ascertain 
whether and in what way effect would be given to the old 
agreement — namely, the sixth Hague convention, and 
was not to enter into a new agreement dealing with the 
same subject and tending to the same effect, but con- 
cluded under conditions as embarrassing and with a 
result as superfluous as could be imagined. 

It is true that expressions are to be found on the German 
side, in the latter part of these communications as well as 
at the outset, which are not inappropriate to a negotiation 
for, and to the conclusion of, a new agreement. The Ger- 
man Government in August states its acceptance of a 
British proposition to release merchant ships, made in the 
order in council of August 4, and in October declares that 
" there now exists between the German Government and 
Great Britain an agreement as to the treatment of mer- 
chant ships." These expressions were not, however, 
adopted by His Majesty's Government. They through- 
out stated their intention to abide by the sixth Hague 
convention, provided Germany would do the same, and 
there are dispatches from Germany at the end of August 
and in September which show that this, which was the 



140 ENEMY VESSELS AND CARGO 

real aspect of the matter, was fully recognized by the 
German Government. The language of the communica- 
tions, when carefully examined, does not support but 
displaces the theory that a new agreement was in negotia- 
tion between belligerents to effect what could have been 
better secured by reciprocal recognition of a convention, 
to which both parties had adhered while they were still 
at peace. 

In the result His Majesty's Government became satis- 
fied that there existed on the German Government's part 
such an intention to observe the convention reciprocally 
as justified them in proceeding publicly to observe the 
convention for their own part, and thenceforward orders 
were made in the prize court, at the instance of the Crown, 
which were always regarded as being framed to carry out 
the obligations of the sixth Hague convention, while 
securing the interests of this country in the possible event 
of Germany's failing at the conclusion of the war to be of 
the same mind as to her obligations as that which had 
been manifested at the beginning. Their lordships may 
further observe that, on balance of the importance of the 
German merchant ships detained by Great Britain against 
that of British merchant ships detained by Germany, the 
latter power had a strong material interest in continuing 
to execute the convention to the end, and was little likely 
to intend to abandon or to desire to forfeit the ultimate 
advantages, which observance of the convention would 
assure. It therefore becomes necessary to consider in 
what the obligations of that convention consist according 
to its terms. 
Applicability of Article 6 of the sixth convention of 1907 declares that 

suth Hague con- , . . 

vention. " the provisions of the present convention do not apply 

except between contracting powers, and then only if all 
the belligerents are parties to the convention." The 
French text for the last part of this sentence reads: "et 
seulement si les belligerants sont tous parties a la con- 
vention," and there may be significance in the different 
positions in the sentence occupied by the respective 
words "all" and "tous." Of the powers belligerent in 
some theater or other and against one combination of 
opponents or another during the late war, Serbia and 
Montenegro never ratified the convention in question. 
The United States were not parties to it at all. At the 
time when the ships now under discussion were first de- 
tained, Germany had not declared war on Serbia, nor 



EFFECT OF NONRATIFICATION 141 

had Serbia become formally the ally of Great Britain, 
and, so far as their lordships are aware, actual hostile 
action by Germany against Serbia and actual military 
support to Serbia by Great Britain both belong to later 
stages in the war. A nice question arises, therefore, 
whether Serbia was a belligerent in such a sense that her 
failure to ratify the convention prevents its being ap- 
plicable as between Germany and Great Britain in the 
matter of these ships? If the position of Serbia does 
not prevent the obligations of the convention from at- 
taching, still less can this result from that of the United 
States, who were not one of the " contracting powers." 
To put the point otherwise, are the " belligerents," who 
are to be taken account of for the purposes of this article, 
the belligerents merely who detain or suffer detention, or 
are they all the powers who are simultaneously engaged 
in war, whether acting in alliance or in direct conflict 
with one another or not? Is the adherence of all the 
belligerents, however remote from each other or uncon- 
nected with the ships and their detention, the considera- 
tion for the attaching of the obligation of any one of 
them, or are the mutual promises of the powers con- 
cerned — that is, of the detainer and the detained — a suffi- 
cient consideration to bind them both together? Mu- 
tuality is of the essence of the convention. Is that mu- 
tuality complete if the detaining sovereign and the 
sovereign of the ships detained ratify and abide by the 
convention, or is it imperfect, so as to prevent the ap- 
plication of the convention, unless and until other powers 
in no way concerned in the ships or their fortunes, but 
merely connected with one or both of those sovereigns 
in the general war, have likewise ratified and likewise 
abided by the convention, whether or no they have ships 
or harbors, and whether or no they make or suffer cap- 
tures or are ever directly affected by maritime war at all ? 
It is very hard to credit that the operation of an agree- 
ment, so earnestly directed to the attainment of the 
highest practical ends in war, should have been deliber- 
ately made to depend on the accidents or the procrasti- 
nations of diplomatic procedure in time of peace, even 
when no real relation existed between the condition and 
the consequence, between the ratification of all the parties 
and the detention of the ships of one of them. Their 
lordships, however, have not found it necessary to give 
a final answer to these questions. Whether in the 



142 ENEMY VESSELS AND CARGO 

circumstances of these cases the convention was applicable 
or whether it might be successfully objected that it had 
never become applicable, the result is the same, for the 
objection is clearly one that can be waived, and in their 
lordships' opinion it was waived by His Majesty's 
Government, alike by the whole tenor of the above- 
mentioned correspondence and by the whole attitude 
of the Crown in matters of prize affecting such cases as 
these throughout the war. De facto as well as de jure 
the position of Serbia and the other powers, as regards 
both the convention and the conduct of the war, was- 
well known to His Majesty's Government at all material 
times. Yet days of grace were in fact allowed to Austrian 
ships by proclamation dated August 15, 1914, as to which 
see The Turul. 18 The Chile 5 order was wholly inept if 
the convention had and could have no application, and 
the Crown should have applied to the court not for leave 
to requisition, but for decrees of condemnation. The 
fact that, in spite of the doubt expressed by Sir Samuel 
Evans, P., in The Mowe 10 , the Crown acquiesced in 
numerous orders in that form and never asked for con- 
demnation of these detained ships so long as hostilities 
lasted, is conclusive to show that any right to rely on the 
nonfulfilment of article 6 was waived. The arguments of 
the attorney general on behalf of the Crown in the case 
of The Gutenfels 19 and Procurator in Egypt v. Deutsches 
Kohlen Depot 20 are of especial importance in this con- 
nection. 

In construing such an international instrument as that 
now in question, it is profitable to bear in mind from the 
outset sundry considerations, which are not the less 
important for being doubtless somewhat obvious. It 
results from deliberations among the representatives of 
many powers, in which none can expect without some 
concession to insist upon his country's interests, its lan- 
guage, or its law. It is expressed in what is by tradition 
the common language of international intercourse, but 
it would be unreasonable in the circumstances to expect 
of it either nicety of scholarship or exactitude of literary 
idiom. Neither the municipal law nor the technical 
terms of the negotiating countries can be expected to find 

• [1914] P. 212. " [1916] 2 A. C. 112, 115. 

» [1915] P. 1, 12. 20 [!9 19 ] A< o. 291, 292. 

i« [1919] A. C. 515. 



INTERPRETATION OF CONVENTION 143 

a place in its provisions. Where interests conflict, much 
must be allowed to the effects of compromise; where the 
principles, by which future action is to be guided, are 
laid down broadly, leaving to the powers concerned the 
actual measures to be taken in execution of those princi- 
ples, it is unreasonable to expect a greater precision than 
the circumstances admit of, or to reject as incomplete 
provisions which are expressed without much detail and 
sometimes only in outline. 

On the other hand, it is specially necessary to discover 
and to give effect to all the beneficent intentions which 
such instruments embody and which their general tenor 
indicates. It is impossible to suppose, whatever the 
imperfections of their phrasing, that the framers of such 
instruments should have intended any power to escape 
its obligations by a quibbling interpretation, by a merely 
pedantic adherence to particular words, or by empha- 
sizing the absence of express words, where the sense to 
be implied from the purport of the convention is reason- 
ably plain. Least of all can it be supposed that His 
Majesty's Government could have become parties to 
such an instrument in any narrow sense, such as would 
reserve for them future loopholes of escape from its 
general scope. 

Turning to articles 1 and 2 of the sixth Hague conven- 
tion, it is important to remember that, before its date, 
and since its date whenever it is not in force, the law of 
nations permitted and entitled a belligerent to make 
prize of an enemy merchantman found within his ports 
at the outbreak of war (Lindo v. Rodney 21 ) . It is true 
that n several instances during the nineteenth century 
belligerents mitigated the rigour of the rule and granted 
days of grace for the free departure of such vessels. The 
practice was certainly modern, but it was neither uniform 
nor universal, and on each occasion it rested with the 
belligerent to elect whether the rule recognized by the 
law of nations should be mitigated or not. It is not 
surprising that the negotiators of 1907 got no further than 
agreeing that permission to depart freely, within a time 
to be fixed by the power entitled to capture, was a thing 
desirable indeed, but not obligatory. 

Under these circumstances it is asked with much force : 
Why should powers, who could not agree that days of 

» 2 Doug. 612n. 



Articles 1 and 2. 



144 ENEMY VESSELS AND CARGO 

grace should be given at all, find themselves able to con- 
cur in a more extensive modification of the law then 
existing and to agree that ships, unable to avail them- 
selves of permission to depart, should not be made prize 
but should only be detained ? The argument finds some 
support in the fact that the article dealing with days of 
grace precedes that limiting the right to such condemna- 
tion, and in the further fact that article 2 certainlv is 
closely allied with article 1 and is so far dependent on it 
that instead of stating the circumstances in which it 
applies, as a self-contained article might be expected to 
do, it finds their definition only in a reference to the first 
article and to those circumstances mentioned in it, which 
depend on the choice and the clemency of the capturing 
power. Why, then, should powers, which fail to agree 
to such a modification of belligerent right as is involved 
in the grant of days of grace, be deemed capable of the 
graver modification which is involved in abandoning the 
right to capture and being intent with a right to detain? 
The true question, however, is not why they should 
have but whether they have done so, and it may be use- 
fully met, if not completely answered, by asking another. 
The powers, great and small, assembled at The Hague in 
1907 in what was undoubtedly a great effort, involving 
mutual concessions and separate sacrifices, to regulate 
and to humanize the practices of maritime war. Is it 
consistent with their dignity or with the seriousness of the 
negotiations to read a part of their handiwork as meaning 
that a belligerent need not spare an enemy ship in his 
own port at all unless he chooses, but that, if from good 
nature or improvidence, he waives his right to bar her 
exit absolutely, he is to be bound by convention to do 
more than he chooses to do by express grace, and may 
then only detain, when otherwise he could seize? To 
say that the compact expressed in article 2 has been provi- 
dently entered into in case two belligerents should recip- 
rocally grant days of grace under article 1, but that until 
that event happens it is a mere foretaste of things to 
come, is to attenuate this convention to the very verge of 
annulling it. It is all the more unworthy of such an 
occasion to place so narrow a meaning on the article, 
because the length and character of the opportunity for 
departing in peace rests entirely with the grantor of it. 
In itself a concession requiring immediate departure 
differs only notionally from a belligerent act inhibiting 



GERMAN INTERPRETATION 145 

departure altogether. Is the modification of belligerent 
right to take place only in the one case and not'in the 
other? and, if so, on what show of reason can it be 
founded or to what inveterate prejudice or ingrained 
self-interest has so illogical an arrangement been con- 
ceded ? 

Articles 3 and 4, however, which are strictly in pari 
materia, seem to place the matter beyond doubt. Nicies 3 and 4, 
Article 3 contains no reference to articles 1 and 2. It 
deals with a case to which days of grace and oppor- 
tunities of departure have no application — that is, to 
ships that are found by their enemy at sea on the out- 
break of war. The argument is unaffected by the fact, 
that as to this article Germany made reservations at the 
time when the convention was ratified, for the effect of 
the reservation is limited to the article with which it 
deals. A reservation as to a part of the convention is 
quite consistent with adoption of the rest of it. The 
article, clearly and independently of the others, requires 
that such ships, though by the law of nations good 
prize, may not be confiscated — that is, seized and brought 
before a court of prize for condemnation. They may 
only be detained — of course, under the order of such a 
court and upon conditions imposed by it. Further, 
when article 4 comes to deal with cargo on board " vessels 
referred to in articles 1 and 2," it prescribes the same 
measure of liability as that laid down in article 3, and 
describes that prescription as being an identical prin- 
ciple. Their lordships, therefore, think it clear that in 
effect this convention says: " Ships which find them- 
selves at the outbreak of war in an enemy port shall in 
no case be condemned, if they are not allowed to leave, 
or if they unavoidably overstay their days of grace, but 
it would be better that they should always be allowed to 
leave, with or without days of grace." In effect, while 
article 1 is only optional, article 2 is obligatory. They 
reject the construction which makes the prohibition 
upon confiscation depend on a prior election to do what 
article 1 desiderates but does not require. 

Assuming that the sixth convention was binding on Effect ,°J ? er ; 

, . . o man method of 

this country in the early stages of the war in such a sense «> n d uctin g war - 
as would prevent the condemnation of these vessels 
at the end of it, the procurator general further contends 
that during its progress Germany has by her conduct 
given this country the right to refuse to be bound any 



146 ENEMY VESSELS AND CARGO 

further by its terms so far as German ships are con- 
cerned. It appears that in 1915, though the fact did 
not become known to His Majesty's Government till 
afterwards, the German foreign office instructed the 
German diplomatic officials in Spain to inform the 
owners of these detained ships of the arrival of any of 
them in Spanish ports when navigating under requisition. 
The object of this instruction seems to have been to 
give the owners the opportunity of taking proceedings 
in Spanish courts, if so advised, for recovering possession 
of them in Spanish waters under judgments pronounced 
for the purpose. It does not appear whether any such 
proceedings were ever taken, or, if so, with what result. 
Furthermore, in correspondence with the Government of 
the King of Siam the German foreign office had advanced, 
as a ground for refusing to be bound by the eleventh 
Hague convention, that it had never been ratified by all 
the then belligerent powers. Finally, it was contended 
that the many outrageous and indefensible measures 
adopted by Germany during the war, and especially her 
defiance of the Hague conventions applicable, notably 
by the use of poisonous gas and of contact mines, by 
the destruction of hospital ships, the deportation and 
forced employment of civilians, and the bombardment 
of open towns, amounted to an intimation that she 
intended to repudiate all obligations, and especially all 
conventional obligations, as to the conduct of war, and 
thus gave to Great Britain the right to treat herself as 
released from her correlative obligation under the sixth 
Hague convention of 1907. There are two obvious 
flaws in this argument. First, so far as concerns the 
intentions of Germany she may have flagrantly disre- 
garded obligations which fettered her freedom of action 
to her disadvantage. It does not necessarily follow that 
she intended to repudiate a convention under which she 
stood to gain largely in the long run. There is, in fact, 
no evidence of any conduct on Germany's part down to 
the conclusion of the armistice which put it out of her 
power to return detained ships in pursuance of article 2. 
Secondly, so far as concerns the consequent rights of 
this country, even if the rules of English municipal law 
as to the discharge or dissolution of contracts be appli- 
cable to a case arising between sovereign powers, repudi- 
ation by Germany could do no more than give to this 
country the right to accept that repudiation and to treat 



ENGLISH INTERPRETATION 147 

the convention as no longer binding. There is no evi- 
dence whatever that this was ever done; indeed it is 
plain that His Majesty's Government continued, down 
to the conclusion of hostilities and even to the conclusion 
of peace, to treat this convention as binding. Most, if 
not all, of the Chile orders had been made by the end 
of 1916, since which date, as well as before it, most of 
the facts now relied upon were notorious, yet no step 
was taken to obtain a " further order" in any case, and 
it is to be observed that the reason for making provision 
for a "further order" was not doubt as to the declared 
intentions of Germany with regard to recognition of the 
convention, but uncertainty as to the continuance of 
that intention on her part. If so, in the language of 
the English cases, the contract was kept alive for the 
benefit of both parties, since one party can not of his 
own choice put an end to it by disregarding its obliga- 
tions, and so long as the contract subsists, each party 
can claim the fulfilment of the provisions which are in 
his favor, just as he remains bound to answer for his 
disregard of obligations which he ought to satisfy. 
Their lordships, however, do not rest their conclusions 
on rules applicable to private contracts in English courts. 
The principle of ascertaining the intention of the parties 
to an agreement by giving due consideration to what 
they have said is no doubt valid in international matters, 
but there are many rules both as to the formation, the 
interpretation and the discharge of contracts, which can 
not be transferred indiscriminately from municipal law 
to the law of nations. They prefer to rely on a wider 
ground. It is not the function of a court of prize, as 
such, to be a censor of the general conduct of a belligerent, 
apart from his dealings in the particular matters which 
come before the court, or to sanction disregard of solemn 
obligation's by one belligerent, because it reprehends the 
whole behavior of the other. Reprisals afford a legiti- 
mate mode of challenging and restraining misconduct, 
to which, when confined within recognized limits and 
embodied in due form, a court of prize is bound to give 
effect. In a matter, however, which turns on the obliga- 
tion of a single and severable compact, the court must 
inquire whether that very compact has been discharged, 
and ought not to be guided by considerations arising 
only out of the general conduct of war. Their lordships 
are clearly of opinion that neither in regard to the in- 



148 ENEMY VESSELS AND CARGO 

structions given to the German Embassy in Madrid, 
which were after all a domestic matter and were at most 
a threat never communicated by Germany to His 
Majesty's Government; nor to the answer given to the 
Government of the King of Siam, which not only was 
res inter alios acta but related to a separate convention 
and proved nothing as to the German Government's 
intention to observe Convention VI.; nor in regard to 
the general delinquencies of the German forces during 
the War, is it possible to find juridical grounds for releas- 
ing His Majesty's Government from their obligations 
under the sixth Hague convention, when once they had 
attached. It has not even been shown that on the ter- 
mination of the war Germany was not willing to return 
such British ships as she had detained, in so far as they 
had not been previously released under the armistice or 
otherwise. 
iease ders ° f re ^ would follow from the foregoing considerations that 
the owners of the vessels in question would be entitled 
to orders of release, but now arise the difficulties, that of 
these vessels only one survives, and that all matters 
occurring during the war are, as between German 
claimants and the procurator general, now to be con- 
sidered in the light of the treaty of Versailles. 
Compensation. Article 2 of the sixth convention, after prescribing that 
the belligerent's right is limited to detention of the ship 
" under an obligation of restoiing it after the war without 
compensation," proceeds: "or he may requisition it on 
condition of paying compensation." What is this com- 
pensation, and when and in what events is it to be paid? 
The question is material, because during the period of 
requisitioning the Blonde was lost by perils of the sea, 
without fault on the part of any one responsible, and the 
Hercules can not now be restored because the German 
combatant forces themselves destroyed her, purporting 
to do so as a legitimate act of war. The provision is that 
a detained vessel is simply to be restored without com- 
pensation. Nothing is said to impose on the belligerent 
any duty to provide for her safety or to effect repairs. If 
he restores her, he does so without compensation, and 
meantime she has been detained at her owners' risk. 
Next, the belligerent is given an express right to requi- 
sition, but on condition of paying compensation. Whether 
requisition has the same meaning in the convention that 
it has in Order XXIX, or whether, in addition to the 



COMPENSATION 149 

right to use, it includes a right to appropriate, are 
questions not now material; for present purposes it is 
sufficient to assume that the meaning of the word in 
both instruments is the same. While on the one hand 
nothing is stipulated as to payment of freight or of com- 
pensation for the use of the ship while under requisition 
and nothing is expressed as to repairs, on the other hand, 
a^art from circumstances which discharge the requisi- 
tioning government from all the obligations of the con- 
vention, the exercise of the right to requisition during 
detention involves that, if she is not restored at all, com- 
pensation takes her place, and for this purpose her money 
value, when requisitioned, is the obvious substitute for 
the ship herself in specie. 

It is no doubt paradoxical that, the ship having been 
lawfully requisitioned by the Admiralty without any 
obligation to pay for using her or for the consequences 
of mere use, His Majesty's Government should be called 
on to compensate her German owners, because the 
German forces have sunk her by an illegitimate act of 
war. The question, however, is one of construction of 
the article. It begins by substituting detention for 
confiscation, thus insuring to the owner the right to get 
his ship back, so far as the detaining belligerent is con- 
cerned. On this is engrafted a proviso for the benefit 
of the belligerent, of which he may avail himself or not as 
he pleases, and this proviso imposes on him an un- 
qualified condition — that of compensation. This must 
be read literally, and as nothing further is prescribed 
in favor of the detaining belligerent, he can not have the 
benefit of exceptions by implication. The convention 
says that requisitioning is to be on condition of paying 
a compensation; the condition would be frustrated if, 
though the obligations of the convention had not been 
terminated, neither ship nor compensation were forth 7 
coming. 

The convention furthermore does not define the com- 
pensation, or the mode of calculating it, or the time of 
payment. These are matters which it leaves for sub- 
sequent determination, and it is reasonable to infer that 
at any rate the determination of the court of prize, 
before which the vessel in question has been duly brought 
is within the purview of the convention. Accordingly, 
if the recognized procedure as to requisitioning has been 
followed, as was done in the present case, and if that 



150 ENEMY VESSELS AND CARGO 

procedure provides for the substitution of money for the 
ship, that money can not be regarded as being other than 
the compensation to which the article applies. Under 
the prize rules and orders the court can allow the ship, 
which is in the custody of its marshal, to be requisitioned 
by the Crown, and in the course of such requisitioning to 
be necessarily exposed to maritime and belligerent 
hazards. This involves the court's parting with the 
custody and with the immediate control. For the 
security of the owner the court may require the deposit 
or a binding undertaking for the deposit in court of the 
ship's appraised value, and although the court by no 
means parts with its control over the ship for all pur- 
poses, or precludes itself altogether from ordering her 
redelivery, it treats the fund for all ordinary purposes as 
the subject on which subsequent decrees will operate. 
The advantage to the owner is obvious. This procedure 
substitutes for such a wasting asset as a ship, whieh in 
either event he can not use, a money fund in court, which 
possesses a relative stability and suffers no wear and 
Conclusion; tear. Their lordships' conclusion is that under the 
sixth convention the subjects to be restored are the 
Prosper, being a ship which is in specie, and the ap- 
praised values of the Blonde and Hercules, which were 
lost. No question as to freight was raised before their 
lordships. 

A further point may be briefly disposed of. It was 
that in all cases where a ship is requisitioned otherwise 
than " temporarily " under rule 6 of Order XXIX, the 
substitution of the appraised value for the ship is defini- 
tive, and no order can thereafter be made to take the 
ship herself out of the possession of the Admiralty. There 
is no authority for this. It is not supported by the 
special provision for a temporary, as distinguished from a 
general and indeterminate, requisitioning, which was 
only introduced by amendment into Order XXIX some 
considerable time after the beginning of the war, nor 
does the provision that such requisitioning may be without 
appraisement preclude the power of ordering appraise- 
ment, when on the destruction of the vessel it becomes 
necessary that a fund should be determined which will- 
represent her. It is opposed to the nature of requisi- 
tioning, which is for the use of His Majesty (including, no 
doubt, consumption in the case of goods whose normal 
use consists in using them up), and would confound a 



CLASSES OF VESSELS 151 

thing requisitioned for use with a thing acquired for the 
purpose of sale. Furthermore, in cases where release 
in specie is the right of a claimant, the court might prove 
to have disabled itself from making the due decree, if a 
mere order for leave to requisition were to operate as a 
final abandonment to the Crown. Apart from the treaty 
of Versailles, their lordships conclude that the Prosper 
must, as a matter of form, be restored by the Admiralty to 
the custody of the marshal, in order that she may be 
released to the owners in specie. 

The provisions of the treaty of Versailles, which are sal ^ ty of Ver ' 
invoked to the contrary, are twofold. There can be no 
doubt that Germany was competent, on behalf of those 
nationals who were German subjects within the operation 
of the treaty, to make cessions which would bind them 
and effect a transfer of their rights of property, as if the 
cession had been made personally by the owner concerned. 
By article 1 of annex 3 of Part VIII of the treaty Ger- 
many ceded to the allied and associated powers all vessels 
of 1,600 tons gross and upward and a part of those 
under 1,600 tons, and by paragraph 8 she further " waived 
all claims of any description against the allied and asso- 
ciated governments or their nationals in respect of the 
detention, employment, loss or damage of any German 
ships," with an exception not now material. By article 
440 Germany further recognized as valid and binding 
all decrees and orders concerning German ships and goods 
made b} r any prize court of any of the allied and associated 
powers. 

In their lordship's opinion, while annex 3 operates to . ^J tons S ° ver 
transfer the property in all ships of 1,600 tons gross and 
upward, it makes no such transfer in the case of ships of 
less tonnage, at least until they have been selected for 
surrender as part of those which under the treaty are to 
be handed over. It is not suggested that the vessels in 
question have been so selected, and accordingly in their 
case this provision of the treaty does not affect the 
owners' rights to restoration in specie. Had they been 
over 1,600 tons, the property and rights of the owners 
would have been transferred by the operation of the 
treaty and they would have had no locus standi to 
appeal against any order dealing with them or with the 
money in court or to be brought into court after appraise- 
ment in substitution for them. Article 1 of the annex 3 
to Part VIII, being a cession by the German Govern- 
ment, "so as to bind all other persons interested," not 



152 ENEMY VESSELS AND CARGO 

only binds the German shipowners as persons interested 
in appraised values brought into or to be brought into 
court, but also binds them in respect of their property 
in the ships, which, until duly divested by a decree 
having that effect, remains in them, even though it may 
be liable to be divested at any time; accordingly it would 
be an answer both in regard to detained ships still in 
specie, whether remaining in the custody of the court 
or under requisition, and to the funds, which, represent 
them under the practice of the court. 

Their lordships further think that paragraph 8 does 
not affect the matter. It would be otherwise if the 
appraised value were regarded, not as a substitution for 
the requisitioned res, taking its place when lost, but as 
a payment in consideration of being allowed to requisi- 
tion at all, for in that case there might be a claim, which 
paragraph 8 would bar. Their lordships, however, reject 
this view. The owners of these detained ships have no 
claim against His Majesty's Government either for de- 
taining or for using the vessels. Both were regular pro- 
ceedings taken as of right under regular decrees the 
validity of which Germany recognizes by the treaty of 
peace. The loss of the vessels gave no claim, for the 
owners' rights arise not out of the loss but out of the 
substitution of the appraised values for the ships, the 
release of which is the indemnity which the convention 
provides for. There is, therefore, in this case nothing 
to waive. 

The treaty of Versailles contains a further provision 
(art. 297) not specially applicable to shipping by which 
the allied and associated powers reserve the right to 
retain and liquidate -all property within their territories 
belonging to German nationals or companies controlled 
by them at the date of the coming into force of the treaty, 
the liquidation to be carried out in accordance with the 
laws of the allied or associated state concerned. It has 
been urged on the one hand and denied on the other 
that an answer can be found to the claim of the Danziger 
Rederci Aktien-Gesellschaft for the release of these ves- 
sels in the application of this article to the ships and 
funds in question. Beyond observing that the conten- 
tions raised on both sides deserve full and careful consid- 
eration by the appropriate tribunal, their lordships do 
not feel called upon to express any opinion about them, 
for they are satisfied that the prize court is not such a 



DELIVERY OF GERMAN SHIPS 153 

tribunal. Nor do the terms of the armistice affect the 
matter. It is enough to say that article 30, which was 
cited, does not purport to touch the obligations of the 
Crown under the sixth Hague convention, when duly de- 
termined by a court of prize, whether before or after 
the conclusion of hostilities. It merely put it out of 
the power of Germany, when delivering the ships de- 
manded, to insist on an anticipation of the actual end 
of the war by delivery of the detained German ships 
forthwith. 

As soon as the conclusion has been arrived at that 
under the treaty obligations of 1907 this country is bound 
to restore the res, whether now existing in specie or only 
n the form of a substituted fund, the duty of the prize 
court prima facie is to give effect to that obligation and 
thereby to discharge itself and its officials from further 
custody of or control over it. The decision of course 
involves a. duty to ascertain that the private party claim- 
ing is a party presently entitled, who has not, by his own 
act or by the public act of those who bind him, been 
divested of his rights of ownership or of possession. 
Where rights and claims arise out of the way in which the 
prize has been dealt with prior to the decree for its release 
and the execution of that decree, no doubt the prize 
court retains its jurisdiction over them, notwithstanding 
that the res no longer remains in its custody. Here, how- 
ever, there is no such case. Whatever rights may have 
been reserved to His Majesty, as one of the allied and 
associated powers, to liquidate these ships or their value, 
they have not, so far as their lordships have been in- 
formed, been hitherto put in force. The right referred to 
is not the right, existing independently of and prior to the 
convention of 1907, to claim condemnation of these ships 
in prize in accordance with the law of nations, nor is the 
reservation of it equivalent to the discharge of the restric- 
tions, which the sixth convention imposes. It is a right 
to liquidate in accordance with municipal law, that is to 
say a new right, which does not become effective unless 
and until it is exercised. If this were to be done hereafter, 
it would be a new act not arising out of dealings with the 
prize as prize, not modifying the rights of ownership as 
they now exist, and therefore it would be cognizable by 
some other tribunal. Their lordships are clearly of 
opinion that the treaty of Versailles, which neither names 

33474—251 11 



154 ENEMY VESSELS AND CARGO 

nor seems to consider the sixth Hague convention, does 
not in this article modify or annul the obligations which 
arise under it. So much they decide, but no more: the 
rest is open and, apparently, in accordance with the terms 
29 Eflect of article f ar ti c le 297, is cognizable by the high court of justice. 
As this potential claim has been brought to their lord- 
ships' attention, they think that under any order of 
release the res should not be removed out of British terri- 
tory for a reasonable time, lest otherwise the treaty right 
might be defeated; but they see no reason for delaying the 
grant of a decree for release, since no ground remains for 
continuing the responsibilities of the prize court or pro- 
longing its possession. The right course will be to 
release the res physically to the public trustee as custo- 
dian of enemy property, or to such other officer as may be 
discharging such duties, to be retained by him for a 
reasonable time free of expense to the claimants, say for 
six months, in order that the Crown may have the oppor- 
tunity of commencing proceedings if so advised, and in 
that case further until the final determination of those 
proceedings, but in any other case to be thereafter forth- 
with delivered up to the claimants. 

It is unnecessary to express any opinion as to the 
appellants' claim to a special position as a company 
registered in and under the laws of the Free City of 
Danzig except as to one point. It was urged that a 
court of prize can condemn only as against an enemy 
subject. Conceding that the power is exercisable after 
the conclusion of peace, it was said only to apply to those 
whose allegiance or citizenship is the same as it was 
before that time, though peace has converted enmity into 
amity; hence as against the subject of a newly constituted 
State, though formerly they were German, the right to 
condemn has ceased. The contention was not rested 
on any authority, nor was it explained why proceedings 
which were regular from the beginning should be frus- 
trated as against the captors by a stipulation in the 
treaty, which does not deal with their rights but is 
directed to another and a very different object. Their 
lordships think the contention groundless. 
Decision. i n the result the appeals succeed with costs; the 

decrees of condemnation should be set aside; the matter 
should be remitted to the prize court to make such orders 
as may be necessary for the appraisement of the Blonde 
and the Hercules, and to make a decree releasing those 



RELEASE OF VESSELS 155 

appraised values and the Prosper in specie to the cus- 
todian of enemy property to be delivered up to the 
claimants, if after the lapse of six months no proceedings 
have been begun for an order for delivery up to the 
Crown, but otherwise to abide the final determination 
of such proceedings. There is also an appeal by leave 
from the president's refusal of a rehearing, as to which 
nothing need be said beyond formally dismissing it. 

Their lordships will humbly advise His Majesty ac- 
cordingly. 

The Rabenfels, the Werdenfels, the Lauterf els , the Aenne JSJlSSl! ° ve * 
Rickmers, the Guienfels, the Barenfels, the Prim Adalbert, 
the Kronprinsessin Cecilie. 

In these cases their lordships, at various dates in the 
earlier part of the war, made orders on appeal that the 
ships should be detained until further order. 22 All were 
over 1,600 tons. 

The owners in the first, second, third, fifth, and sixth 
now petition that orders be made for the release of such 
as remain and for payment of the appraised values of 
such as are lost, while the Crown petitions in all that 
orders condemning both may be made. 

The relevant considerations have been fully dealt with 
in the case of the Blonde and other ships. In the case 
of ships of this size the treaty of Versailles operates as 
a transfer of the former owners' rights, nor have they 
any locus standi before the board to discuss how the 
allied and associated powers may deal with them inter 
se. The petitions for release should be dismissed with 
costs. 

As their lordships understand that His Majesty's 
Government have come to arrangements with the allied 
and associated powers with regard to the shipping sur- 
rendered and transferred under the treaty, and that no 
question now arises as between them in relation thereto, 
they think that the proper course is to discharge the 
orders for detention previously advised by their lord- 
ships; and to release the vessels to the Crown as the 
present owner. 

Their lordships will humbly advise His Majesty ac- 
cordingly. 

Solicitors for shipowners (appellants and on petitions) :. 
Botterell & Roche. 

Solicitor for procurator general: Treasury solicitor. 

22 E.g. [1916] 2 A. C. 112; [1918] A. C. f.00 ancUOln. 



156 ENEMY VESSELS AND CARGO 

THE " ZUIDERZEE " AND THE "GOUWZEE" 

April 27, 1917 

([1] Entscheidungen des Oberprisengerichts in Berlin, 305) ' 

In the prize matter concerning the Dutch steam tugs 
Zuiderzee and the Gouwzee, together with four lighters, 
the imperial superior prize court in Berlin in its session of 
April 27, 1917, held as follows: 

The appeals against the judgment of the prize court 
in Hamburg of January 26, 1917, fail. The claimants to 
bear the costs of the appeal. 

Reasons: 

On September 28, 1916, two tugs, the Dutch tug 
thefects™ 611 * of Zuiderzee, with the Belgian lighters, L'Avenir and Pays 
Bas, and the Dutch tug Gouwzee, with the Dutch lighters 
S. C. C. 17 and S. 0. C. 18, were stopped by German war 
vessels and brought into Zebrugge. The lighters were 
empty. The Belgian craft were turned over to the 
Marine Corps in Bruges in accordance with article 46, 
section 2, of the Price Court Rules. The form of the 
barges, which were being taken to London, is the distinct 
build of the "Thames barges" as they are used in Lon- 
don Harbor. 

In response to the published notice of the imperial 
prize court in Hamburg, the following appearances were 
made for the release of the vessels and indemnification : 

1. The firm of L. Smit & Co., as owners, for the two 
steam tugs. 

2. The merchant, L. Letzer, formerly of Antwerp, now 
of Rotterdam, for the Belgian lighter. 

3. The Scheepvart en Steenkalen Co., of Rotterdam, 
for the Dutch lighter. 

The imperial prize court in Hamburg decreed the con- 
demnation of all the craft and rejected the claims. 

Against this decision the claimants have entered appeal. 

The appeals fail, 
"contraband ^ s ^he Dar g es captured with the two steam tugs are con- 
ditional contraband according to article 23, section 9, of 
the Prize Code. Their destination was London, and the 
judge of first instance is of the opinion that the pre- 
sumption of their destination for the enemy Government 
or military force arising therefrom has not been disproved. 
On this ground he reached the conclusion that not onlv 
the barges themselves but the tugs as well were liable to 
condemnation. It is explained that the barges were the 



THE ZUIDERZEE AND THE GOUWZEE 157 

only " consignment" (Beforderungsgegenstande) of the 
tugs, and were to be considered as their " cargo" in the 
sense of article 41, section 2, of the Prize Code. That 
they were not taken on board the steamer made no differ- 
ence. According to the aim of the prize law, which is to 
prevent the "supply" of contraband to the enemy, that 
does not matter. If certain provisions of the Prize Code 
read as if the goods must be on board the vessels, like 
articles 35 and 36, there are other provisions again which 
plainly denote that only the act of supplying is the 
criterion, as articles 39 and 41. 

The fact that it would be absurd to treat a vessel 
which, for instance, was carrying parts of a submarine or 
dock on board differently from a vessel which was con- 
veying an entire boat or dock in tow to the enemy was 
considered telling. 

That must be concurred in. Under the circumstances 
here prevailing, where the barges were themselves un- 
laden, the legal question is not in doubt. According to 
the statements of the claimants, it is established that t0 £age. ract for 
the barges were given over to the owners of the tugs 
for delivery. According to a generally recognized prin- 
ciple of private law, this is the decisive element in estab- 
lishing the legal position of tows. According to whether 
the towed vessel has been intrusted to the master of 
the tug for delivery to the recipient, or whether title has 
remained in the owners of the former, a contract of 
freight, or a contract of towage, is presented, be it for 
service or for work. Even granted that principles of 
private law are not necessarily controlling for questions 
of international law, yet in this case they have immediate 
significance, inasmuch as the answer to the question of 
what was to be considered as the cargo of the vessel 
can only be gathered from the agreement concerning 
the goods made with the owner of the vessel, which 
must be interpreted in accordance with private law. 
It is unnecessary to raise the question whether it would 
be different if goods had been taken aboard the lighters 
for delivery to England at the same time, and if there 
had been the further intention of bringing the barges 
right back to Holland after the completion of the trip 
and unloading. 

Here it is only a question of the conveyance of the 
barges themselves, which comprised the only elements 
of the consignment. It is immaterial whether the ship's 



158 ENEMY VESSELS AND CARGO 

master stows the goods intrusted to him in the hold or 
on deck, whether he suspends them from the sides of 
the vessel, or whether he draws them along after him 
or beside him through the water. 

From the point of view of international law, the barges 
were the goods and the cargo of the tug. Nor does the 
application of article 41, section 2, of the Prize Code 
code rman Prize do violence to the text. The tugs are subject to con- 
demnation in so far as the towed craft were contraband, 
because they were captured for " carriage" of contra- 
band. On the other hand, article 33, section 2, of the 
Prize Code has no application to the towed craft. It- 
provides that merchant vessels themselves are not to be 
regarded as destined for the enemy forces, etc., for the 
mere reason that they are en route to a fortified position 
of the enemy. But the towed barges are not in this 
case the "vessels themselves," but the "cargo." From 
still another point of view, but for the same reasons, as 
regards the lighters UAvenir and Pays Bas, it is not of 
decisive significance that they are of Belgian, and hence 
of enemy, nationality. For they are cargo, and enemy 
cargo is protected by the neutral flag of the tug, provided 
it is [not] contraband of war. 
Presumption of Concerning this last question, too, the first judge must 

enemy destina- & ^ 7 7 . 

tion - be concurred with. The legal presumption of enemy 

destination arises against the lighters in view of the place 
to which they were bound, and what the merchant 
Letzer — to consider his claim next — has adduced in dis- 
proof of the presumption is without significance. The 
assurances of the owners of the craft in litigation can 
naturally pretend to only slight value as evidence. Nor 
are the officials of the firm so disinterested that their 
impartiality and trustworthiness are to be presupposed 
without further ado. Inherently, too, their declara- 
tions — including that which the claimant succeeded in 
substantiating under No. 1 — are futile, so far as ascribing 
to them any decisive value as evidence is concerned. In 
vain does one ask what induced the merchant, formerly 
domiciled in Antwerp, who now seems to have sought 
refuge in Rotterdam, to transfer his business, or a part 
thereof, to London. And even if the assumption is 
doubtless in point, that at present there is much to be 
earned in London with craft of this kind, yet it is equally 
sure that the English military direction or the depart- 
ments of civil government of the state stand in the first 
rank as the best customers for means of transportation by 



CONDEMNATION 159 

water. If the actual facts remain unclear, even in regard 
to what the claimant had only contemplated, it is wholly 
uncertain what the real state of affairs would have been 
if the voyage of the lighters had succeeded. Therefore, 
the legal presumption remains. 

Fundamentally, it is the same with the claim of the a^p^^SS 
Dutch Shipping & Coal Co. They appear to have an Co - 
establishment in London in connection with their firm 
which was transferred to England, and the lighters might 
have been going to play their part in a business already 
existing — one does not know, to be sure, how long it had 
existed — of a definite character with business connec- 
tions which had been established earlier. Here, too, 
however, from what the claimant presents in the way of 
proof, one gains no more than this general idea of the 
possibilities presented. Nor can any conclusive weight 
be given the fact that the transfer of the lighters to Eng- 
land was only permitted by the Government upon the 
pledge of the owners to bring them home again within 
six months, and after the English Government had 
guaranteed that no objection would be raised thereto. 
On this point the testimony is rendered nugatory by 
the evidence. Only two, quite detached, statements in 
writing Were presented in transcript. 

If one is confronted at this stage by facts which are 
fragmentary and which have not been cleared up, there 
also fails to be any assurance that the pledges entered 
into at the time of the transfer would have been kept on 
all sides. The embarrassment of our enemy, as regards 
tonnage of all kind, is too well known for one not to have 
to consider the possibility that, with the consent of all 
parties, and without any embarrassment arising for the 
claimant vis-a-vis his government, the arrangement 
might have been changed, as may even have been in- 
tended when the vessels were imported. 

The case of craft of the sort in question, under the 
prevailing circumstances, is one sui generis, and it can 
not be decided according to the same rules which apply 
to goods of other kinds, food, etc. 

It is also remarkable that in the assurances of those a£ jP^ mnation 
who know from their own knowledge, only use for pur- 
poses of war is spoken of. Use by departments of the 
English Government for other purposes, even limited to 
the proposed period of six months, would be conclusive 
as to the contraband character of the vessels. 

The judgment is affirmed. 



JAPANESE PRIZE CASES 



THE GERMAN STEAMSHIP "ZUIMO" AND ITS CARGO 

Nov. 21, 1914, March 29, 1915 

(Japanese supreme prize court and prize court at Sasebo) 

Decision, concerning the case of the seizure of the 
German steamship Zuimo and its cargo in the supreme 
prize court and the prize court at Sasebo. 

A 

Concerning the case of the seizure of the German 
steamship Zuimo and its cargo, the prize court at Sasebo ' 
rendered the decision on the 21st day of November of 
the third year of Taisho (A. D. 1914) as follows: 

Decision 

Petitioner : Hamburg- Am erikanische Packetfahrt 
Actiengesellschaft, of Hamburg, Germany. 

Kepresentative: George Bohlsen, Hamburg- American 
Line, Shanghai, China. 

Deputy: Robert Copus, Kitanomachi, Kobe. 

Counsellor for petitioner: Joei Hirata, counsellor at 
law. 

The prize court at Sasebo renders the decision con- n Judgment of 

r Sasebo prize 

cerning the case of the seizure of the German steamship court - 
Zuimo and its cargo, as follows: 

TEXT 

The German steamship Zuimo and its cargo on board, 
consisting of 600 tons of Miike coal, 900 tons of Cardiff 
coal, 60 barrels of machine oil, and 3 cases of medical 
supplies shall be condemned as prize. 

FACTS AND REASONS 

The steamship Zuimo is owned by the Hamburg- statement of 
American Steamship Co. of Germany, registered *at 
Hamburg, Germany, having its seat at Shanghai, 
China, and is a merchantman solely engaged in transpor- 
tation of goods, under the German flag. 

33474— 25t 12 161 



162 JAPANESE PRIZE CASES 

When the war broke out between Germany, on one 
hand, and Russia, France, and Great Britain, on the 
other, in the early period of August, the third year of 
Taisho (A. D. 1914) the ship was laden at Shanghai, 
by the order of the said steamship company, with 600 
tons of Miike coal, 900 tons of Cardiff coal, 60 barrels of 
machine oil, and 3 cases of medical supplies, all of which 
belonged to the same company. 

The ship left Shanghai on the 7th of that month in 
order to supply the German fleet which was cruising in 
the southern Pacific, though feigning to be heading 
toward Kobe, Japan, as its destination; and reached, 
after direct voyage, on August 14, the Pagan Island, of 
German possession, where it stayed at anchorage or in 
cruising around there. On the 23d day of that month 
the war broke out between this country and Germany, 
but the ship remained in the same condition until 
September 7, when it sailed farther south to the Saipan 
Island, of German possession, where it stayed for 
several days in a port of the island named Tanapag. 
Thus it expected to furnish the German fleet with the 
supplies on board. But, as it had no opportunity as 
yet in meeting the said fleet, it decided to sail for the 
" disguising" destination in order to supplement food- 
stuffs. Leaving the port Tanapag of the said Saipan 
Island on September 8, it made a stop at the Pagan 
Island, after which it sailed on toward Kobe. 

It was about 2 o'clock in the morning of the 15th 
day of September when the said ship with its cargo was 
captured at sea by the Hatsuharu, a destroyer of the 
Imperial Japanese Navy, at about 400 meters north of 
Tomogashuna of the Kidan-S trait. 

The above facts were clearly established by the report 
of the acting commander, Bunichi Harada, of the de- 
stroyer Hatsuharu, lieutenant of the Imperial Japanese 
Navy; by the statements made by Capt. Fritz von Bil- 
grim of the steamship Zuimo, Chief Mate Johann Nansch, 
and one of the crew, a Li Yao Cheng; by the report of 
the examination of the log book provided in the said 
ship; by the nature of the cargo itself; and also by the 
incompleteness of the records related to the ship. 
for Vr faiSifl t ^he P omts maintained by the counsellor for the peti- 

tioners are as follows: That the steamship Zuimo and 
its cargo on board are altogether possessed by the peti- 
tioners; that since the ship was entirely ignorant of the 



THE ZUIMO 163 

outbreak of the war between Japan and Germany until 
it was captured on September 15 at the Kidan-S trait, 
after leaving Shanghai, as its "last starting port," release 
of the ship should be made by virtue of the imperial 
ordinance No. 163, article 5; that the fact that the ship 
made temporary anchorages at the Pagan and Saipan 
Islands amounts to no more than that it cast anchor at 
the ''no-man's island of an unknown sea"; it should 
not, therefore, be considered in its later relationships as 
its "last starting port" or the so-called "the national 
port of the ship" or "the neutral port" as is mentioned 
in the last section of the said article; that, as the ship 
is solely used for the regional, limited navigation, it 
should be released, together with its cargo, by virtue of 
the naval order No. 8, article 25, and that, since the 
cargo was not carried with the view of belligerent pur- 
poses, the ship and its cargo on board should be released. 

On the other hand, the public procurator of the prize CO ndfmnation ° f 
court maintains, in brief, that the ship and its cargo 
should be seized because they are clearly "enemy ship 
and enemy cargo," and, furthermore, they do not come 
under the provisions which are provided for special 
exemption. 

This court is of opinion that at the present generation pr f v l^ property 
the precedents and established rules of the international at sea - 
law justly recognize the right of a belligerent power to 
seize any enemy ship and enemy goods on the sea in 
time of war, except those which are exempted by virtue 
of international law, or those which come under the pro- 
visions specifically providing for such exemption between 
the participating belligerents; and our laws and regula- 
tions concerning the maritime capture are nothing but 
the adoption of these principles. 

Now as to this case, it is the opinion of this court that there ignorance of 
is scarcely any doubt about the enemy character of the 
ship and cargo, for the steamship Zuimo is justly entitled 
to fly the German flag, and the cargo on board is possessed 
by a company of German nationality. The imperial 
ordinance No. 163, article 5, section 1, of the third year 
of Taisho (A. D. 1914) should be interpreted as being 
without applicability to a ship which, though ignorant 
of the fact of the existence of war, sailed from its last 
port after the outbreak of war. It can not be denied 
that the ship was at anchor at Tanapag Harbor of the 
Saipan Island of German possession after the declara- 



164 



JAPANESE PRIZE CASES 



tion of the war between Japan and Germany, and did 
not leave there until September 8, making it clear that 
Shanghai, its port before the declaration of war, was 
nothing but its very first starting port. Consequently, 
the provision of article 5, section 1, should not be applied 
in this case. Obviously, neither section 3 of the same 
article, nor the same imperial ordinance, nor any other 
exceptions, providing for exemption, should be applied. 
snSiiToatL 011 of Furthermore, the so-called "enemy ships engaged in the 
regional, limited navigation" mentioned in the naval 
order No. 8, article 25, of the third year of Taisho 
(A. D. 1914), should be interpreted so as to meannoth- 
ing more than the small craft engaged in shipping of the 
marine and agricultural products, and in general trans- 
portation with and among the neighboring islands; no 
steamship engaged in the coastal navigation should be 
included. It is clear that the ship under consideration 
belongs to a powerful German joint-stock company, 
tonnage being about 1,903, engaged always in the trans- 
portation of goods, navigating along the Yangtse Kiver 
and the far eastern coast, with Shanghai as its base. 
It does not, therefore, come under the rules providing 
for exemption. It should also be considered that the 
ship did sail with the definite, purpose of furnishing the 
supplies to the German fleet which was cruising in the 
southern Pacific at that particular time. However, it 
is quite a useless task to inquire whether it did so for 
belligerent purposes or not, since they have already been 
decided to be "enemy ship and enemy goods." 

Such being the case, it is the opinion of the court that 
the seizure of the said steamship and cargo on board is 
justifiable and they ought to be condemned as stated in 
the text. 

At the prize court at Sasebo the 21st day of November 
of the third year of Taisho (A. D. 1914). " 

Decision rendered in the presence of Matsukichi 
Koyama, public procurator. 

Taro Tezuka, president, the prize court at Sasebo; 
Shizen Komaki, counsellor, the prize court at Sasebo; 
Tsutsumu Hirose, counsellor, the prize court at Sasebo; 
Sadayoshi Asaki, secretary, the prize court at Sasebo. 



Decision. 



APPEAL 165 

B 

Upon appeal from the above decision the supreme Appeal. 
prize court has rendered its decision on the 29th day of 
last month (March 29, 1915) as follows: 

Decision 

Petitioner: Hamburg-Am erikanische Packetfahrt Ac- 
tiengesellschaft, of Hamburg, Germany. 

Representative: George Bohlsen, Hamburg- American 
Line, Shanghai, China. 
, Deputy: Robert Copus, Kitanomachi, Kobe. 

Counsellor for petitioner: Joei Hirata, counsellor at 
law. 

The supreme prize court considers, in the presence of 
the procurators, Hideyoshi Arimatsu and Kisaburo 
Suzuki, J. D., the appeal from a decision of the prize 
court at Sasebo rendered on the 21st day of November 
of the third year of Taisho (A. D. 1914), which author- 
ized the condemnation of the German steamship Zuimo 
and its cargo consisting of 600 tons of Miike coal, 900 
tons of Cardiff coal, 60 barrels of machine oil, and 3 cases 
of medical supplies, all of which were captured at sea by 
the Hatsuharu, of the Imperial Japanese Navy, on the 
loth day of September of the third year of Tashio 
(A. D. 1914), at about 400 meters north of Tomogashima 
at the Kidan Strait; the appeal being made by the 
petitioner Hamburg-Am erikanische Packetfahrt Actien- 
gesellschaft; representative George Bohlsen, Deputy 
Robert Copus, and his counsellor, Joei Hirata, counsellor 
at law. 

The points of the protest presented by Joei Hirata, p] ^-^ cnl for 
counsellor for the petitioners, can be summarized as 
follows : 

That the captain and the crew of the ship were entirely 
ignorant of the outbreak of the war between Japan and 
Germany until tliey were captured; 

That the cargo was not transported for any belligerent 
purpose; 

That the ship should be released by virtue of the im- 
perial ordinance No. 163, article 5, of the third year of 
Taisho (A. D. 1914), because it put to sea from its last 
starting port of Shanghai without any knowledge of the 
existence of war between Japan and Germany; 

That the fact that the ship made temporary anchorages 
at the Pagan and Saipan Islands amounts to no more 



166 JAPANESE PRIZE CASES 

than that it cast anchor at "a no-man's island of an 
unknown sea/' it should not, therefore, be considered in 
its later relationships, as its "last starting port," as 
stated in the imperial ordinance No. 5, article 1, or "the 
national port of the ship" or "the neutral port," as is 
mentioned in section 3 of the same article; 

That, as the ship has solely been used for the regional, 
limited navigation, it should be released, together with 
its cargo, by virtue of the naval order No. 8, article 25; 

That, for these reasons, it is urged the steamship 
Zuimo and its entire cargo on board should be released, 
reversing the original decision, 
condemnation for On * ne °ther hand, Matsukichi Koyama, procurator 
of the prize court at Sasebo, maintains: 

That the ship under consideration belongs to the enemy 
and the cargo on board is "enemy goods on an enemy 
ship;" it is therefore clear that even the appellant does 
not dispute this point; 

That the enemy ship may be exempted from capture 
at the time of outbreak of war only when it comes under the 
rules of the exemption expressly declared by the belliger- 
ent power; the simple fact that it lacks the knowledge of 
the outbreak of war does not itself exempt it from 
seizure; 

That even admitting what the appellant contends that 
the captain and his crew were ignorant of the outbreak 
of the war, attention must be called to the fact that there 
is no provision in the imperial ordinance No. 163 of the 
third year of Taisho which relates to a ship like this one 
that left the Saipan Island of German possession after 
the outbreak of war between this country and Germany, 
namely, on September 8; 
Enemy destina- That as to the belligerent purpose of the transporta- 
tion, there is no room for doubt when we come to con- 
sider the following facts: first, the cargo was war sup- 
plies; secondly, there were two German warships (Scharn- 
horst and Gneisenau) cruising in the southern Pacific at 
that particular time; 

Thirdly, the fact that the captain, leaving the Pagan 
Island for the Saipan, left two letters in the charge of 
the administrator of the said island, which were very 
likely addressed to the captains of the German warships. 
But it is immaterial to investigate whether or not the 
ship transported the cargo for belligerent purposes, since 
it is enough to condemn it as prize when they are proved 
to be "enemy ship and enemy cargo"; 



ENEMY VESSEL. AND CARGO 167 

That it is clear that Shanghai was its first port 
departure and the Saipan Island was its last port of 
departure — this can be established judging from the fact 
that it was laden at Shanghai with coal and other war 
supplies for the German fleet of the southern Pacific — 
then sailing for the Pagan Island on August 7 where it 
cruised about three weeks around there, but failing to 
meet the fleet moved to the Saipan Island on September 
4, where it remained until the 8th, when it decided to 
sail for Kobe in order to supplement the foodstuffs; 

That the Saipan can not be considered as " a no-man's po ^. ipan M a 
island of an unknown sea"; because, according to the 
statements made by the first mate, Johann Hansch, and 
by Elbert Rosche, a passenger from the Saipan Island, 
there is Lau-Lau Bay in the east of Saipan, and in the 
west of Tanapag Harbor there are some habitations 
counting 2,400 natives, 15 Germans, and 8 Japanese; 
and not only that, but the map shows there is a harbor 
in the Tanapag Bay which bears the same name. 

That, as stated in the original paper of decision, it is 
clear that the ship is not the " enemy ship used in the 
regional, limited navigation," within the meaning of the 
naval order No. 25 of the third year of Taisho (A. D. 
1914). 

That in the whole view of the case it is proper that the 
original court condemned the ship and its cargo; and 
since there is no foundation for claim, it should be dis- 
missed. 

The following is the opinion of this court: 

That, since there is no dispute as to the right of the and n cargo. vesse 
ship in flying the German flag, since its cargo on board 
belongs to a German trading company, and since the 
ship and its cargo are of enemy character, there is no 
question about the condemnation even though the cargo 
were not for belligerent use; 

That the exemption of such ship and cargo can be 
made only when they fulfilled the conditions provided 
by the express terms of the treaty No. 11 of the forty- 
fifth year of Meiiji, the imperial ordinance No. 163, of 
the third year of Tiasho, or the naval order No. 8 of the 
same year. Nevertheless, the fact that the ship set sail 
from Tanapag Harbor 'of the Saipan Island of German 
possession, on the 8th day of the third year of Taisho, 
which is proved by the log book of the ship and other 
documents, can not be denied. Therefore, the ship does 



168 JAPANESE PRIZE CASES 

not come under the provision of the so-called " Imperial 
German ships which left their last starting port before 
the outbreak of war," of the imperial ordinance No. 163, 
article 5, of the third year of Taisho. 
tufe° rt ° f depar " It is clear, therefore, that they can not be exempted 
from seizure by virtue of the said provision, even though 
we accept the fact that the crews were ignorant of the 
outbreak of the war. 

Though the appellant urges that the ship left its last 
starting port of Shanghai on the 7th day of August, of 
the third year of Taisho, and that its temporary anchor- 
ages at the Pagan and Saipan Islands are nothing more 
than its stoppages at " the no-man's island of an unknown 
sea," the logbook and other documents clearly show that 
it stayed for several days at Tanapag Harbor,- and sent a 
second engineer ashore for medical treatment, while 
loading with some foodstuffs and taking a passenger 
aboard. Therefore, it can not be considered an anchorage 
at "the no-man's island of an unknown sea." 

The so-called "last starting port," provided in the said 
imperial order No. 5, does not mean the base of the 
starting port of a voyage, but it simply means the last 
port during its navigation. This can be clearly seen in 
the cause of its origin, the treaty No. 6 of the forty-fifth 
year of Meiji, article 3. Therefore, the protest against 
this point has no foundation. 
Local traffic. Again, it can not be denied that the ship, possessing a 
tonnage of 1,903, was engaged in navigation for trans- 
portation of goods along the Yangtse River and the far 
eastern coast, with Shanghai as its base; this is proved 
by the builder's certificate of the S. S. Zuimo and other 
documents, and by the actual fact that the ship made 
voyages from Shanghai to Kobe. Therefore, the ship 
does not come under the provision "the enemy ship used 
for regional, limited navigation" of the naval order No. 8, 
article 25, of the third year of Taisho. Therefore, it can 
not be released by virtue of the said provision. 

The so-called "enemy ships used in the regional- 
limited navigation" means simply those small craft used 
for the coastal transportation of a limited area; and this 
is clearly shown in the cause of the enactment of the 
treaty No. 11 of the forty-fifth year of Meiji. Again, 
therefore, this point has no foundation. 

As stated above, there is no ground for appeal. 

The court, therefore, is of opinion that the appeal 
should be dismissed. 



THE EORUS 169 

At the supreme prize court, the 29th day of March of 
the fourth year of Taisho (A. D. 1915). 

Baron Junjiro Hosokawa, Litt. D., president, the 
supreme prize court; Baron Koroku Tsutsuki, J. D. 
counsellor, the supreme prize court; Genji Baba, coun- 
sellor, the supreme prize court; Joichiro Tsuru; coun- 
sellor, the supreme prize court; Hideo Yokota, J. D. 
counsellor, the supreme prize court; Kajkuichi Mura- 
kamu, counsellor, the supreme prize court; Sakuei 
Takahashi, J. D. counsellor, the supreme prize court; 
Jujiro Sakata, counsellor, the supreme prize court; 
Chozo Koike, counsellor, the supreme prize court; 
Mayuki Akiyama, counsellor, the supreme prize court; 
Joji Matsumoto, J. D. counsellor, the supreme prize 
court. 

THE SEIZURE AND DESTRUCTION OF THE GERMAN 
SAILING VESSEL "EORUS" 

Jan. 9, 1915 

(Prize court at Sasebo) 

Decision 

Examining the statement of the procurator concerning 
the seizure of the German sailing vessel Eorus, the court 
renders the decision as follows : 

The sailing vessel Eorus is decreed seized. 

FACTS AND REASONS 

The sailing vessel under our consideration is a posses- statement or 
sion of a Yaluit Joint-stock Co. of Hamburg, Germany, 
registered at Hamburg. Under German flag, the ship 
engaged in the transportation of goods among the islands 
of the southern Pacific. 

When the state of war was established between this 
country and Germany on the 23d day of August of the 
third year of Taisho (A. D. 1914), the ship sailed, with- 
out cargo, from the Yaruit Island, of the German Mar- 
shall Archipelago, for Honolulu, of the Hawaiian Islands 
of the United States, apparently in order to avoid cap- 
ture in a neutral port. It was when the ship was passing 
a point on the sea on a course 75 Q west of north 
near the Diamond Head lighthouse, about 21° 12' 30" 



prize 



170 JAPANESE PRIZE GASES 

north latitude; and 157° 55' 30" west longitude, on 
October 24 of the same year, that she was captured by 
the H. I. S. Hizen, which sent her to the bottom at a 
point 7.5 miles southwest of the lighthouse (that is, 7.5 
miles from the coast), at 8.09 p. m. (Honolulu standard 
time), of the same day. 

The above fact is well established by the document 
called " Captain's statement," the list of crew, the log 
book, the certificate of the nationality of the ship, a 
letter of Jansen Menke, of the branch office of the Yaluit 
Co., dated September 9, 1914, addressed to Harhachfeldt 
& Co. another letter of the same person, dated September 
3, 1914, addressed to the base of the German Asiatic 
Fleet, the joint report by Lieut. Bikei Imaizumi and 
Capt. C. Friedricksen on the seizure, and the report of 
Capt. Yasukata Kawanami, commander of the H. I. S. 
Hizen. 
•uction of ^ e cour t is of opinion that a belligerent power can 
capture any enemy merchantman which navigates in the 
public sea, knowing the outbreak of war; and it is also 
a well-established rule of the international law, recog- 
nized by the theory and precedents, that the captor can 
destroy the prize in case it hinders the military action to 
take the captured ship into the captor's port. 

Therefore, we are inclined to justify the action of the 
H. I. S. Hizen which captured the enemy ship as such 
when the latter was sailing toward Honolulu in order to 
avoid capture. 

According to the statement made by Commander 
Kawanami of the H. I. S. Hizen, his warship was watch- 
ing the German warship Geier which was sheltering itself 
in the port of Honolulu, and it was also preventing the 
northward movement of the powerful enemy fleet. 
Under these circumstances, it is quite obvious that the 
effect of the military action might have been hindered, if 
they transported the prize; therefore it is also lawful that 
they destroyed it. 

Hence, the court decrees as stated in the text. 

At the prize court at Sasebo, the 9th day of January 
of the fourth year of Taisho (A. D. 1915). 

Taro Tezuka, president, the prize court at Sasebo; 
Fushi Inuru, counsellor, the prize court at Sasebo; Oto- 
jiro Ito, counsellor, the prize court at Sasebo; Terufusa 
Hori, counsellor, the prize court at Sasebo; Shunichi 
Nagaoka, J. D., counsellor the prize court at Sasebo; 
Yuichiro Kuma, secretary, the prize court at Sasebo. 



THE CHRISTIAN BOLES 171 

THE SEIZURE OF THE NORWEGIAN STEAMSHIP 
"CHRISTIAN BOLES" AND ITS CARGO 

(Prize court at Sasebo) 

Decision 

Examining the statement of the procurator concerning 
the seizure of the Norwegian steamship Christian Boles 
and its cargo, the court renders the decision as follows: 

TEXT 

The steamship and its cargo on board should be 
released. 

FACTS AND REASONS 

The steamship under our consideration is a merchant- statement of 
man belonging to a Christian Boles Co. of Norway, and 
is registered at Bergen, Norway. Under the Norwegian 
flag, it has been engaged in transportation of goods. 
The said company has rented it to the J. J. Moore Co., 
of San Francisco, United States of America, which in 
turn rented the same to the Kobert Dollar Co., of San 
Francisco, United States of America. Under that con- 
tract, the ship has been engaged in navigation between 
Shanghai, China, and thePaeific ports of the United States. 

On the 27th day of January of the fourth year of 
Taisho (A. D. 1915) the ship put to sea from Shanghai for 
San Pedro, United States of America, laden with cotton 
oil, cowhides, eggs, poppy seeds, wool, pig iron, and other 
commodities. It carried aboard a passenger, one 
G. Blumenstock, a reserve surgeon of the German Army, 
who assumed a Swiss name of L. Belnasconie, under the 
status of supercargo. 

Arriving at Kobe, via Karatsu, Japan, on February 1, . unneutral serv- 
and being laden with corn and other goods, the ship was 
searched by the EL I. S. Tatsuta, and on the 5th of the 
same month it was declared seized on the grounds that 
the ship had aboard a man who most likely could help 
the military affairs against our country; that the cap- 
tain's statement did not agree with the log book of the 
ship; and that the log book was disarranged. 

The above facts are clearly established by the report 
of the acting commander, Saisuke Koizumi, H. I. J. N., 
lieutenant of the H. I. S. Tatsuta, the examinations of 
Capt. J. Hiller. the crew, and G. Blumenstock, the cer- 
tificate of nationality of the ship, the certificate of regis- 
tration of the ship, the list of crew, the charter party, the 
log book, the inventory, and the bill of lading. 

The procurator urges that the capture of the said 
steamship was lawful, but that the ship and its cargo 
should be released immediately. 



172 JAPANESE PRIZE CASES 

The court is of opinion that the captain did not present 
all the lists of crew when searched; and even those pre- 
sented later do not coincide with the actual staff; more- 
over, the records are disarranged; and the captain's 
statement differs from the list of crew. 

It was clearly learned by the dispatch from our 
consul general at Shanghai to the commander of the 
H. I. S. Tatsuta that one L. Belnasconie of Switzerland, 
registered in the list of crew as a supercargo has been 
dead for some four months. Again it is plain fact that 
the very ship secretly carried Von Hinsze, the German 
minister to China, under the false name of W. Rogers 
when it sailed on December 5, 1914, from Everett, 
United States of America, to Shanghai. 

Under these circumstances, and judging from this 
man's conduct it is quite natural that the acting com- 
mander of the H. I. S. Tatsuta suspected him as a German 
officer in command of the ship in behalf of Germany for 
her military aim. 

Therefore, we consider that the capture of the ship 
and its cargo was lawful, 
suspicion not Despite all these facts it is the opinion of this court 

well founded. r r 

that the ship and its cargo should be released immediately 
on the following grounds: 

Because the difference in the registered and actual 
number of the crew was only due to the fact that some 
of the crew went ashore at Karatsu on January 30 — 
this fact was not reported to the searching officers: 

Because the person who assumed the name Belnasconie 
was really a German surgeon, a reserve German Army 
surgeon, who had been practicing medicine in Shanghai, 
and was returning home in order to join the military 
force of his country, and traveled under a false name in 
order to avoid detention by the British authorities 
but was not commanding the ship for belligerent pur^ 
poses; and, 
vessel restored. Because the cargo on board is not contraband of war. 

We decide, therefore, as stated in the text. At the 
prize court at Sasebo, the 26th day of February of the 
fourth year of Taisho (A. D. 1915). 

Taro Tczuka, president, the prize court at Sasebo; 
Fushi Inuru, counsellor, the prize court at Sasebo; 
Thunichi Nagaska, J. D., counsellor, the prize court at 
Sasebo; Kai Matsuoka, counsellor, the prize court at 
Sasebo; On Hirose, counsellor, the prize court at Sasebo; 
Katsuji Kitamura, secretary, the prize court at Sasebo. 



MIXED CLAIMS COMMISSION— UNITED STATES 
AND GERMANY 

OPINION IN THE "LUSITANIA" CASES 

November 1, 1923 
CMixed Claims Commission, United States and Germany, p. 17) 

Parker, Umpire, delivered the opinion of the commis- 
sion, the American and German commissioners concur- 
ring in the conclusions: 

These cases grow out of the sinking of the British 
ocean liner Lusitania, which was torpedoed by a German statement of 
submarine off the coast of Ireland May 7, 1915, during case * 
the period of American neutrality. Of the 197 American 
citizens aboard the Lusitania at that time, 69 were saved 
and 128 lost. The circumstances of the sinking are 
known to all the world, and as liability for losses sus- 
tained by American nationals was assumed by the Gov- 
ernment of Germany through its note of February 4, 
1916, it would serve no useful purpose to rehearse them 
here. 

Applying the rules laid down in Administrative Deci- 
sions Nos. I and II handed down this date, 1 the commis- Rules of com . 
sion finds that Germany is financially obligated to pay miS81on - 
to the United States all losses suffered by American na- 
tionals, stated in terms of dollars, where the claims 
therefor have continued in American ownership, which 
losses have resulted from death or from personal injury 
or from loss of, or damage to, property sustained in the 
sinking of the 'Lusitania. 

This finding disposes of this group of claims, save that 
there remain to be considered (1) issues involving the 
nationality of each claimant affecting the commission's 
jurisdiction, and (2) the measure of damages to be applied 

to the facts of each case. 

— 

1 Reference is made to Administrative Decision No. I for the definition of the terms 
used herein. 

We are here dealing with a group of cases all growing out of a single catastrophe. As 
it is manifestly of paramount importance that the same rules of decision shall govern 
the disposition of each and all of them, whether disposed of by agreement between the two 
commissioners or in the event of their disagreement by the umpire, this opinion an- 
nouncing such rules is, at the request of the two commissioners, prepared by the umpire, 
both commissioners concurring in the conclusions. The principles and rules here laid 
down will, where applicable, govern the American and German agents and their respec- 
tive counsel in the preparation and presentation of all claims. 



173 



174 CLAIMS COMMISSION UNITED STATES AND GERMANY 

In this decision rules applicable to the measure of 
damages in death cases will be considered. In formu- 
lating such rules and determining the weight to be given 
to the decisions of courts and tribunals dealing with this 
subject, it is important to bear in mind the basis of re- 
covery in death cases in the jurisdictions announcing 
such decisions. 

At common law there existed no cause of action for 
damages caused by the death of a human being. The 
right to maintain such actions has, however, been long 
conferred by statutes enacted by Great Britain and by 
all of the American States. The German code expressly 
recognizes liability for the taking of life. 2 These legis- 
lative enactments vary in their terms to such an extent 
Damages. that there can not be evolved from them and the de- 
cisions of the courts construing them any composite 
uniform rules governing this branch of the law. Such 
statutes and decisions as well as the other governing 
principles set out in this commission's Administrative 
Decision No. II will, however, be considered in determin- 
ing the applicable rules governing the measuring of 
damages in death cases. 

The statutes enacted in common-law jurisdictions con- 
ferring a cause of action in death cases where none before 
existed have frequently limited by restrictive terms the 
rules for measuring damages in such cases. The tendency, 
however, of both statutes and decisions is to give such 
elasticity to these restrictive rules as to enable courts 
and juries in applying them to the facts of each particu- 
lar case to award full and fair compensation for the in- 
jury suffered and the loss sustained. 3 The statutes of 
several States of the American Union authorize juries to 
award such damages as are "fair and just" or " pro- 
portionate to the injury." Under such statutes the 
decisions of the courts give to the juries much broader 
latitude in assessing damages than those of other States 

2 Section 823. See also Huebner's "History of Germanic Private Law," 1918, pp. 
578-579, and Schuster's "Principles of German Civil Law," 1907, sees. 284-286. 

3 Nohrden v. Northeastern Railroad Co., 1900, 59 South Carolina Reports 87, 105-108, 
37 Southeastern Reporter 228, 238-240; Stuckey v. Atlantic Coast Line Railroad Co., 1901, 
60 South Carolina Reports 237, 252-253; Parker v. Crow ell & Spencer Lumber Co., 1905, 
115 Louisiana Reports 463, 468, 39 Southern Reporter 445, 446; Bourg v. Br own ell- Drews 
Lumber Co., 1908, 120 Louisiana Reports 1009, 1022-1027, 45 Southern Reporter 972, 
977-979; Seaboard Airline Railway v. Moseley, 1910, 60 Florida Reports 186, 189; Peters 
v. Southern Pacific Co., 1911, 160 California Reports 48, 69-71; Underwood v. Gulf Re- 
fining Co., 1911, 128 Louisiana Reports 968, 937-1003, 55 Southern Reporter 641, 646- 
653; Johnson v. Industrial Lumber Co., 1912, 131 Louisiana Reports 897, 910, 60 Southern 
Reporter 608, 612. 



L.USITANIA CASES 175 

where the statutes expressly limit them to so-called 
" pecuniary injuries/' 4 which is a term much misunder- 
stood. 

In most of the jurisdictions where the civil law is ad- 
ministered and where the right of action for injuries 
resulting in death has long existed independent of any 
code or statute containing restrictions on rules for 
measuring damages, the courts have not been ham- 
pered in so formulating such rules and adapting them to 
the facts of each case as to give complete compensation 
for the loss sustained. 

It is a general rule of both the civil and common law 
that every invasion of private right imports an injury 
and that for every such injury the law gives a remedy. 
Speaking generally, that remedy must be commensurate 
with the injury received. It is variously expressed as 
"compensation," "reparation/' "indemnity," "recom- 
pense," and is measured by pecuniary standards, because, 
says Grotius, 5 "mone}^ is the common measure of valu- 
able things." 

In death cases the right of action is for the loss sustained 
by the claimants, not by the estate. The basis of damages 
is, not the physical or mental suffering of deceased or his 
loss or the loss to his estate, but the losses resulting to 
claimants from his death. The inquiry then is: What 
amount will compensate claimants for such losses? 

Bearing in mind that we are not concerned with any 
problems involving the punishment of a wrongdoer but 
only with the naked question of fixing the amount which 

4 Mynning v. The Detroit, Lansing & Northern Railroad Co., 1886, 59 Michigan Reports 
257, 261-262, 26 Northwestern Reporter 514, 516-517; Simmons v. Mc Conn ell, 1890, 86 
Virginia Reports 494, 496-497, 10 Southeastern Reporter 838, 839; The Ohio and Missis- 
sippi Railway Co. v. Wangelin, 1894, 152 Illinois Reports 138, 142, 38 Northeastern Re- 
porter 760, 761; Turner v. Norfolk & W. R. Co., 1895, 40 West Virginia Reports 675, 
638-689, 693-695, 22 Southeastern Reporter 83, 87, 9; Slrother v. South Carolina & Georgia 
Railroad Co., 1896, 47 South Carolina Reports 375, 383-384, 25 Southeastern Reporter 
272, 274; Mason v. Southern Railway Co., 1900, 58 South Carolina Reports 70, 77, 36 
Southeastern Reporter 440, 442; Parker v. Croivell & Spencer Lumber Co., 1905, 115 
Louisiana Reports 463, 468, 39 Southern Reporter 445, 446; Norfolk & Western Railway 
Co. v. Chealwood's Administratrix, 1905, 103 Virginia Reports 356, 364-365, 49 Southeast- 
ern Reporter 48*, 491-192; Butte Electric Ry. Co. v. Jones, 1908, C. C. A., 164 Federal * 
Reporter 308, 311, 18 Lawyers' Reports Annotated (New Series) 1205, 1208; Brennen 
v. Chicago & Carterville Coal Co., 1909, 147 Illinois Appellate Court Reports 263, 270- 
273; Chesapeake & O. Ry. Co. v. Hawkins (West Virginia), 1909, C C A., 174 Federal 
Reporter 597, 601-602, 98 Circuit Court of Appeals 443, 447-448. 

* "The Rights of War and Peace," by Hugo Grotius, Whewell translation, 1853 (here- 
nafter cited as "Grotius"), Book II, Ch. XVII, Sec. XXII; Sedgwick on Damages, 
9th (1912) edition (hereinafter cited as "Sedgwick"), Sec. 30. 



176 CLAIMS COMMISSION UNITED STATES AND GERMANY 

will compensate for the wrong done, our formula expressed 
mate S . es ° f esti * in general terms for reaching that end is: Estimate the 
amounts (a) which the decedent, had he not been killed, 
would probably have contributed to the claimant, add 
thereto (b) the pecuniary value to such claimant of the 
deceased's personal services in claimant's care, education, 
or supervision, and also add (c) reasonable compensation 
for such mental suffering or shock, if any, caused by the 
violent severing of family ties, as claimant may actually 
have sustained by reason of such death. The sum of 
these estimates, reduced to its present cash value, will 
generally represent the loss sustained by claimant. 

In making such estimates there will be considered, 
among other factors, the following: 

{a) The age, sex, health, condition and station in life, 
occupation, habits of industry and sobriety, mental and 
physical capacity, frugality, earning capacity and custom- 
ary earnings of the deceased and the uses made of such 
earnings by him: 

(b) The probable duration of the life of deceased but 
for the fatal injury, in arriving at which standard life- 
expectancy tables and all other pertinent evidence 
offered will be considered; 

(c) The reasonable probability that the earning capa- 
city of deceased, had he lived, would either have increased 
or decreased; 

(d) The age, sex, health, condition and station in life, 
and probable life expectancy of each of the claimants; 

{e) The extent to which the deceased, had he lived, 
would have applied his income from his earnings or 
otherwise to his personal expenditures from which 
claimants would have derived no benefits; 

(/) In reducing to their present cash value contributions 
which would probably have been made from time to time 
to claimants by deceased, a 5 per cent interest rate and 
standard present-value tables will be used; 

(g) Neither the physical pain nor the mental anguish 
which the deceased may have suffered will be considered 
as elements of damage; 

(h) The amount of insurance on the life of the deceased 
collected by his estate or by the claimants will not be 
taken into account in computing the damages which 
claimants may be entitled to recover; 

(i) No exemplary, punitive, or vindictive damages 
can be assessed. 



BASES OF DAMAGES 177 

The foregoing statement of the rules for measuring 
damages in death cases will be applied by the American 
agent and the German agent and their respective 
counsel in the preparation and submission of all such 
cases. The enumeration of factors to be taken into 
account in assessing damages will not be considered as 
exclusive of all others. When either party conceives 
that other factors should be considered, having a tendency 
either to increase or decrease the quantum of damages, 
such factors will be called to the attention of the com- 
mission in the presentation of the particular case. 

Most of the elements entering into the rules here 
expressed for measuring damages, and the factors to 
be taken into account in applying them, are so obviously 
sound and firmly established by both the civil and com- 
mon law authorities as to make further elaboration 
wholly unnecessary. As counsel for Germany, however, 
very earnestly contends that the mental suffering of a 
claimant does not constitute a recoverable element of 
damage in death cases, and also contends that life 
insurance paid claimants on the happening of the death 
of deceased should be deducted in estimating the claim- 
ant's loss, we will state the reasons why we are unable 
to adopt either of these contentions. The American 
counsel, with equal earnestness, contends that exemplary, 
punitive, and vindictive damages should be assessed 
against Germany for the use and benefit of each private 
claimant. For the reasons hereinafter set forth at 
length this contention is rejected. 

Mental suffering. — The legal concept of damages is 
judicially ascertained compensation for wrong. The 
compensation must be adequate and balance as near 
as may be the injury suffered. In many tort cases, 
including those for personal injury and for death, it is 
manifestly impossible to compute mathematically or 
with any degree of accuracy or by the use of any precise 
formula the damages sustained, involving such inquiries 
as how long the deceased would probably have lived 
but for the fatal injury; the amount he would have 
earned, and of such earnings the amount he would ,, + , ,, 

& Mental sufier- 

have contributed to each member of his family; the iD s- 
pecuniary value of his supervision over the education 
and training of his children; the amount which will 
reasonably compensate an injured man for suffering 



178 CLAIMS COMMISSION UNITED STATES AND GERMANY 

excruciating and prolonged physical pain; and many 
other inquiries concerning elements universally recog- 
nized as constituting recoverable damages. This, how- 
ever, furnishes no reason why the wrongdoer should 
escape repairing his wrong or why he who suffered 
should not receive reparation therefor measured by 
rules as nearly approximating accuracy as human 
ingenuity can devise. To deny such reparation would 
be to deny the fundamental principle that there exists 
remedy for the direct invasion of every right. 

Mental suffering is a fact just as real as physical 
suffering, and susceptible of measurement by the same 
standards. The interdependency of the mind and the 
body, now universally recognized, may result in a mental 
shock producing physical disorders. But quite apart 
from any such result, there can be no doubt of the reality 
of mental suffering, of sickness of mind as well as sickness 
of body, and of its detrimental and injurious effect on the 
individual and on his capacity to produce. Why, then, 
should he be remediless for this injury? The courts of 
France under the provisions of the Code Napoleon have 
always held that mental suffering or " prejudice morale 7 ' 
is a proper element to be considered in actions brought 
for injuries resulting in death. A like rule obtains in 
several American States, including Louisiana, South 
Carolina, and Florida. 6 The difficulty of measuring 
mental suffering or loss of mental capacity is conceded, 
but the law does not refuse to take notice of such injury 
on account of the difficulty of ascertaining its degree. 

On careful analysis it will be found that decisions 
announcing a contrary rule by some of the American 
courts are measurably influenced by the restrictions 
imposed by the language of the statutes creating the 
right of action for injuries resulting in death. As herein- 
after pointed out, these very restrictions have in some 
instances driven the courts to permit the juries to award 
as exemplary damages what were in truth compensatory 
damages for mental suffering, rather than leave the 
plaintiff without a remedy for a real injury sustained. 

« Nohrden v. Northeastern Railroad Co., 1900, 59 South Carolina Reports 87, 105-108, 
37 Southeastern Reporter 228, 238-240; Stuckey v. Atlantic. Coast Line Railroad Co., 1901, 
60 South Carolina Reports 237, 253; Bourg v. Brownell-Drews Lumber Co., 1908, 120 
Louisiana Reports 1009, 1022-1026, 45 Southern Reporter 972, 977-978; Seaboard Air Line 
Railway v. Moseley, 1910, 60 Florida Reports 186, 189-190; Underwood v. Gulf Refining 
Co., 1911, 128 Louisiana Reports 869, 986, 990-1003; Johnson v. I?idustrial Lumber Co. 
1912, 131 Louisiana Reports 897, 908-909. 



doer. 



INSURANCE 179 

Mental suffering to form a basis of recovery must be 
real and actual, rather than purely sentimental and 
vague. 7 

Insurance. — Counsel for Germany insist that in arriving 

J Insurance not 

at claimants' net loss there should be deducted from the to benefit wrong 
present value of the contributions which the deceased 
would probably have made to claimants had he lived all 
payments made to claimants under policies of insurance 
on the life of deceased. The contention is opposed to 
all American decisions and the more recent decisions of 
the English courts. The various reasons given for these 
decisions are, however, for the most part inconclusive and 
unsatisfactory. But it is believed that the contention 
here made by the counsel for Germany is based upon a 
misconception of the essential nature of life insurance 
and the relations of the beneficiaries thereto. 

Unlike marine and fire insurance, a life insurance con- 
tract is not one of indemnity, but a contract absolute in 
its terms for the payment of an amount certain on the 
happening of an event certain — death — at a time un- 
certain. The consideration for the claimants' contract 
rights is the premium paid. These premiums are based 
upon the risk taken and are proportioned to the amount 
of the policy. The contract is in the nature of an in- 
vestment made either by, or in behalf of, the beneficiaries. 
The claimants' rights under the insurance contracts 
existed prioi%to the commission of the act complained of, 
and prior to the death of deceased. Under the terms of 
the contract these rights were to be exercised by claimants 
upon the happening of a certain event. The mere fact 
that the act complained of hastened that event can not 
inure to Germany's benefit, as there was no uncertainty 
as to the happening of the event, but only as to the time 
of its happening. Sooner or later payment must be made 
under the insurance contract. Such payment of insur- 
ance, far from springing from Germany's act, is entirely 
foreign to it. If it be said that the acceleration of death 
secures to the claimants now what might otherwise have 
been paid to others had deceased survived claimants, and 
that therefore claimants may possibly have benefited 
through German}^ act, the answer is that the law will 
not for the benefit of the wrongdoer enter the domain of 
speculation and consider the probability or probabilities 

7 Sedgwick, sec. 46a. 



180 CLAIMS COMMISSION UNITED STATES AND GERMANY 

in order to offset an absolute and certain contract right 
against the uncertain damages flowing from a wrong. 

Use of life-expectancy and present-value tables. — Or- 
dinarily the facts to which must be applied the rules of 
law in measuring damages in death cases lie largely in 
the future. It results that, absolute knowledge being 
impossible, the law of probabilities and of averages must 
be resorted to in estimating damages, and these preclude 
ta ^f e e s ofinsurance the P oss ibility of making any precise computations or 
mathematical calculations. As an aid — but solely as an 
aid — in estimating damages in this class of cases, the 
commission will consider the standard life-expectancy 
and present-value tables. These will be used not as 
absolute guides but in connection with other evidence, 
such as the condition of the health of deceased, the risks 
incident to his vocation, and any other circumstances 
tending to throw light on the probable length of his life 
but for the act of Germany complained of. To the 
extent that happenings subsequent to the death of de- 
ceased make certain what was before uncertain, to such 
extent the rules of probabilities will be discarded. 

Neither will we lose sight of the fact that life tables are 
based on statistics of the length of life of individuals, not 
upon the duration of their physical or mental capacity 
or of their earning powers. In using such tables it will 
be borne in mind that the present value of the probable 
earnings of deceased depends on many more unknowable 
contingencies than does the present value of a life annuity 
or dower. Included among these contingencies are 
possible and probable periods of illness, periods of unem- 
ployment even when well, and various degrees of dis- 
ability arising from gradually increasing age. The weight 
to be given to such tables will, therefore, be determined 
by the commission in the light of t?he facts developed 
in each particular case. 

Exemplary damages. — American counsel with great 
earnestness insists that exemplary, or, as they are fre- 
quently designated, punitive and vindictive, damages 
should be assessed by this commission against Germany 
in behalf of private claimants. Because of the impor- 
tance of the question presented the nature of exemplary 
damages will be examined and the commission's reasons 
for declining to assess such damages will be fully stated. 

Undoubtedly the rule permitting the recovery of ex- 
emplary damages as such is firmly intrenched in the 



EXEMPLARY DAMAGES 181 

jurisprudence of most of the States of the American ^^ p l a ry 
Union, although it has been repudiated by the courts of 
ssyeral of them and its soundness on principle is chal- 
lenged by some of the leading American text writers. 8 

The reason for the rule authorizing the imposition of 
exemplary in addition to full reparation or compensa- 
tory damages is that they are justified "by way of pun- 
ishing the guilty, and as an example to deter others from 
offending in like manner." 9 The source of the rule is 
frequently traced to a remark alleged to have been made 
by Lord Chief Justice Pratt (afterwards Lord Camden) 
in instructing a jury (italics ours) that : 10 

''Damages are designed not only as a satisfaction to 
the injured person, but likewise as a punishment to the 
guilty, to deter from any such proceeding for the future, 
and as a proof of the detestation of the jury to the action 
itself^ 

That such a charge was ever in fact given has been 
questioned. ll However this may be, this alleged in- 
struction has been quoted and requotecl by the courts of 
England and of America as authority for the awarding of 
exemplary damages where the tort complained of has 
been wilfully or wantonly or maliciously inflicted. 

In some of the earlier cases the awards of exemplary 
damages were sustained "for example's sake" and "to 
prevent such offense in the future," and again "to inflict 
damages for example's sake and by way of punishing the 
defendant." In one early New York case 12 it was said: 
"We concede that smart money allowed by a jury, and 
a fine imposed at the suit of the people, depend on the 
same principle. Both are penal, and intended to deter 
others from the commission of the like crime." 

In our opinion the words exemplary, vindictive, or 
punitive as applied to damages are misnomers. The 
fundamental concept of "damages" is satisfaction, re- 
paration for a loss suffered; a judicially ascertained com- 
pensation for wrong. 13 The remedy should be com- 
mensurate with the loss, so that the injured party may 

s Fay v. Parker, 1873, 53 New Hampshire Reports 342; Sedgwick, sec. 354; Greenleaf on 
Evidence, 15th (1892) edition, Vol. II, sees. 253, 254, 266, and 267. 

s Lake Shore & Michigan Southern Railway Co. v. Prentice, 1893, 147 United States 
Reports 101, 107. 

io Wilkes v. Wood, 1763, 19 Howell's State Trials (1816) 1153, 1167, Loflt's Reports 
(1790), pages 1 and 19 of first case. 

11 Sedgwick, sec. 350. 

» Cook v. Ellis, 1844, 6 Hill's (New York) Reports 466, 467. 

13 Sedgwick, sec. 571a. 



182 CLAIMS COMMISSION UNITED STATES AND GERMANY 

be made whole. 14 The superimposing of a penalty in 
addition to full compensation and naming it damages, 
with the qualifying word exemplary, vindictive, or 
punitive, is a hopeless confusion of terms, inevitably 
leading to confusion of thought. Many of the American 
authorities lay down the rule that where no actual damage 
has been suffered no exemplary damages can be allowed, 
giving as a reason that the latter are awarded, not because 
the 'plaintiff has any right to recover them, but because 
the defendant deserves punishment for his wrongful acts; 
and that, as the plaintiff can not maintain an action 
merely to inflict punishment upon a supposed wrongdoer, 
if he has no cause of action independent of a supposed 
right to recover exemplary damages, he has no cause of 
action at all. 15 It is apparent that the theory of the 
rule is not based upon any right of the plaintiff to receive 
the award assessed against the defendant, but that the 
defendant should be punished. The more enlightened 
principles of government and of law clothe the state with 
the sole power to punish but insure to the individual full, 
adequate, and complete compensation for a wrong in- 
flicted to his detriment. 16 

An examination of the American authorities leads to 
the conclusion that the exemplary damage rule owes its 
origin and growth, to some extent at least, to the diffi- 
culties experienced by judges in tort cases of clearly 
defining in their instructions to juries the different 
factors which may be taken into account and readily 
applied by them in assessing the quantum of damages 
which a plaintiff may recover. It is difficult to lay 
down any rule for measuring injury to the feelings, or 
humiliation or shame, or mental suffering, and yet it 
frequently happens that such injuries are very real and 
call for compensation as actual damages as much as 

m Grotius, Book II Chap. XVII, Sec. X: Blackstone's Commentaries, Book II, chap. 
29, Sec. VII, par. 2 (*p. 438); Sedgwick; sec. 29. 

» Schippel v. Norton, 1888, 38 Kansas Reports 567, 572; Meighan v. Birmingham Term- 
inal Co., 1910, 165 Alabama Reports 591, 599. 

»« Vattel's Law of Nations, Chitty edition with notes by Ingraham ,1852 (1857), (here- 
inafter cited as "Vattel") Book I, sec. 169, where it is said: "Now, when men unite in 
society— as the society is thenceforward charged with the duty of providing for the safety 
of its members, the individuals all resign to it their private right of punishing. To the 
whole body, therefore, it belongs to avenge private injuries, while it protects the citizen 3 
at large. And as it is a moral person, capable also of being injured, it has a right to pro- 
vide for its own safety, by punishing those who trespass against it — that is to say, it has 
a right to punish public delinquents. Hence arises the right of the sword, which belongs 
to a nation, or to its conductor. When the society use it against another nation, they 
make war; when they exert it in punishing an individual, they exercise vindictive 
justice." 



COMPENSATORY DAMAGES 183 

physical pain and suffering and many other elements 
which, though difficult to measure by pecuniary stand- 
ards, are, nevertheless, universally considered in awarding 
compensatory damages. The trial judges, following the 
lead of Lord Camden, 17 have found it easier to permit 
the juries to award plaintiffs in the way of damages a 
penalty assessed against defendants guilty of willful, 
malicious, or outrageous conduct toward the plaintiffs, 
rather than undertake to formulate rules to enable the 
juries to measure in pecuniary terms the extent of the 
actual injuries. 18 In cases cited and numerous others, 
the damages dealt with and designated by the court as 
" exemplary" were in their nature purely compensatory 
and awarded as reparation for actual injury sustained. 

That one injured is, under the rules of international 
law, entitled to be compensated for an injury inflicted 
resulting in mental suffering, injury to his feelings, 
humiliation, shame, degradation, loss of social position 
or injury to his credit or to his reputation, there can be 
no doubt, and such compensation should be commen- 
surate to the injury. Such damages are very real, and 
the mere fact that they are difficult to measure or esti- 
mate by money standards makes them none the less 
real and affords no reason why the injured person should 
not be compensated therefor as compensatory damages, 
but not as a penalty. The tendency of the decisions and 
statutes of the several American States seems to be to 
broaden the scope of the elements to be considered in 
assessing actual and compensatory damages, with the 
corresponding result of narrowing the application of the 
exemplary damages rule. 19 

The industry of counsel has failed to point us to any 
money award by an international arbitral tribunal where 

" Wilkes v. Wood, note 10 supra. 

18 Boydan v. Haberstumpf, 1901, 129 Michigan Reports 137, where it was held (p. 140; 
italics ours) that the term "exemplary damages," as employed in Michigan, "has 
generally been understood to mean an increased award of damages in view of the sup- 
posed aggravation of the injury to the feelings by the wanton or reckless act of the 
defendant," and that "It has never been the policy of the court to permit juries to 
award captiously any sum which may appear just to them, by way of punishment to 
the offender, but rather to award a sum in addition to the actual proven damages, as 
what, in their judgment, constitutes a just measure of compensation for injury to feel- 
J ngs, in view of the circumstances of each particular case." 

Pegram v. Stortz, 1888, 31 West Virginia Reports 220, 229, 242-243; Gillingham v. Ohio 
River Railroad Co., 1891, 35 West Virginia Reports 588, 599-GOO; Levy v. Fleischner, Mayer 
& Co., 1895, 12 Washington Reports 15, 17-18. 

19 See the cases cited in note f> above. In the case cited from 128 Louisiana Reports 
the court said, at page 992, "the idea that damages allowed for mental suffering are 
exemplary, punitory, or vindictive in their character has been very generally aban- 
doned, and they are now recognized by this court and other courts as actual and 
compensatory." 



184 CLAIMS COMMISSION UNITED STATES AND GERMANY 

exemplary, punitive, or vindictive damages have been 
assessed against one sovereign nation in favor of another 
presenting a claim in behalf of its nationals. 20 Great 
stress is laid by counsel on the Moses Moke case 21 
which arose under the convention between the United 
Moke case. States and Mexico of July 4, 1868. Moke, an American 
citizen, was subjected to a day's imprisonment to " force" 
him to "loan" $1,000. He sought to recover the amount 
of the "loan" and damages. The American Commis- 
sioner Wadsworth, speaking for the commission, said: 

"We wish to condemn the practice of forcing loans by 
the military, and think an award of $500 for 24 hours' 
imprisonment will be sufficient * * *. If larger sums 
in damages, in such cases, were needed to vindicate the 
right of individuals to be exempt from such abuses, we 
would undoubtedly feel required to give them." 

This language is the nearest approach to a recognition 
of the doctrine of exemplary damages that we have found 
in any reported decision of a mixed arbitral tribunal, but 
we do not regard the decision in this case as a recognition 
of this doctrine. On the contrary, an award of $500 for 
the humiliation and inconvenience suffered by this 
American citizen for the outrageous treatment accorded 

2 " "International Arbitral Law and Procedure," by Jackson H. Ralston, 1910, sec. 369, 
where he says: 

" While there is little doubt that in many cases the idea of punishment has influenced 
the amount of the award, yet we are not prepared to state that any commission has 

accepted the view that it possessed the power to grant anything save compensation. 

* * * >' 

Borchard's "The Diplomatic Protection of Citizens Abroad," 1915 (1922), sec. 174, 
makes substantially the same statement in these words: "Arbitral commissions, while 
often apparently taking into consideration the seriousness of the offense and the idea 
of punishment in fixing the amount of an award, have generally regarded their powers 
as limited to the granting of compensatory, rather than exemplary, damages." 

Doctor Lieber, umpire of the commission under the convention of July 4, 1868, between 
tho United States and Mexico, in awarding the sum of $4,000 on an $85,000 claim, said 
(p. 4311, Vol. IV, of Moore's "History and Digest of the International Arbitrations to 
which the United States Has Been a Party," 1898, hereinafter cited as "Moore's Arbi- 
trations"): "Nor can these high damages be explained as exemplary damages. Our 
commission has no punitive mission, nor is there any offense to be punished." 

See also opinion of Umpire Bertinatti in the case of Ogden, administrator of the estate 
of Isaac Harrington, in which an award of $1,000 was made on an original demand of 
$160,000 where the claim was made that an American citizen was treated oppressively 
and with great indignity by Costa Rica. II Moore's Arbitrations, p. 1566. 

2i IV Moore's Arbitrations, 3411. 

Counsel also lays much stress on the language used by Umpire Duffield of the German- 
Venezuelan Mixed Claims Commission in the Metzger case (pp. 578-580, "Venezuelan 
Arbitrations of 1903," report by Jackson H. Ralston, 1904, hereinafter cited as "Vene- 
zuelan Arbitrations 1903"), where it is said (p. 580; italics ours): "Neither can anything 
be allowed in the way of punitive or exemplary damages against Venezuela, because it 
appears, as above stated, that the general commanding the army promptly took action 
against the offender and punished him by imprisonment." Clearly this is dictum. 
The case was apparently correctly decided and there was no reason for giving any care- 
ful consideration to the right of the commission to go further than award compensator y 
damages. 



TREATY OBLIGATIONS 185 

him by the Mexican authorities can hardly be said to be 
adequate compensation. Certainly the award has in it 
none of the elements of punishment, nor can it be evoked 
as an example to deter other nations from according 
similar treatment to American citizens. 

But it is not necessary for this commission to go to the 
length of holding that exemplary damages can not be 
awarded in any case by any international arbitral tri- 
bunal. A sufficient reason why such damages can not be 
awarded by tliis commission is that it is without the ...Treaty obiiga- 

J % tions. 

power to make such awards under the terms of its char- 
ter — the treaty of Berlin. It will be borne in mind that 
this is a " treaty between the United States and Germany 
restoring friendly relations " — a treaty of peace. Its 
terms negative the concept of the imposition of a penalty 
by the United States against Germany, save that the 
undertaking by German}^ to make reparation to the 
United States and its nationals as stipulated in the treaty 
may partake of the nature of a penalty. 22 

Part VII of the treaty of Versailles (arts. 227 to 230, 
inclusive) deals with "penalties." It is significant that 
these provisions were not incorporated in the treaty of 
Berlin. 

In negotiating the treaty of peace, the United States 
and Germany were of course dealing directly with each 
other. Had there been any intention on the part of the 
United States to exact a penalty either as a punishment 
or as an example and a deterrent, such intention would 
have been clearly expressed in the treaty itself; and, had 
it taken the form of a money payment, would have been 
claimed by the Government of the United States on its 
own behalf and not on behalf of its nationals. As to 
such nationals, care was taken to provide for full and 
adequate "indemnities," "reparations," and "satisfac- 
tion" of their claims for losses, damages, or injuries 
suffered by them. While under that portion of the treaty 
of Versailles which has by reference been incorporated in 
the treaty of Berlin, Germany "accepts" responsibility 
for all loss and damage to which the United States and 
its nationals have been subjected as a consequence of the 
war, nevertheless the United States frankly recognizes 

22 Oppenheim on International Law, 3d (1920) edition (hereinafter cited as "Oppen- 
heim"), Vol. II, sec. 259a, p. 353, where it is said (italics ours): "There is no doubt that 
if a belligerent can be made to pay compensation for all damage done by him in violating 
the laws of war, this will be an indirect means of securing legitimate warfare." 

33474— 25t 13 



186 CLAIMS COMMISSION UNITED STATES AND GERMANY 

the fact "that the resources of Germany are not ade- 
quate * * * to make complete reparation for all 
such loss and damage", but requires that Germany make 
" compensation" for specified damages suffered by Ameri- 
can nationals. 23 For the enormous cost to the Govern- 
ment of the United States in prosecuting the war no claim 
is made against Germany. No claims against Germany 
are being asserted by the Government of the United 
States on account of pensions paid, and compensation in 
the nature of pensions paid, to naval and military victims 
of the war and to their families and dependents. 24 In 
view of this frank recognition by the Government of the 
United States of Germany's inability to make to it full 
and complete reparation for all of the consequences of the 
war, how can it be contended that there should be read 
into the treaty an obligation on the part of Germany to 
pay penalties to the Government of the United States for 
the use and benefit of a small group of American nationals 
for whose full and complete compensation for losses sus- 
tained adequate provision has been made? 

The United States is in effect making one demand 
against Germany on some 12,500 counts. That demand 
is for compensation and reparation for certain losses sus- 
tained by the United States and its nationals. While in 
determining the amount which Germany is to pay, each 
claim must be considered separately, no one of them can 
be disposed of as an isolated claim or suit, but must be 
considered in relation to all others presented in this one 
demand. In all of the claims the parties are the same. 
They must all be determined and disposed of under the 
same treaty and by the same tribunal. If it were pos- 
sible to read into the treaty a provision authorizing this 
commission to assess a penalty against Germany as a 
punishment or as an example or deterrent, what warrant 
is there for allocating such penalty or any part of it to 
any particular claim and how should it be distributed? 
Why should one American national who has sustained a 
loss receive in addition to full compensation " smart 
money" rather than another? Should the full amount 
of the penalty be imposed in connection with a particular 
claim or in connection with a particular incident out of 
which a number of claims arose or in connection with all 
acts of a particular class ? Why impose a penalty for the 

23 Arts. 231 and 232 and Annex I to Sec. I of Pt. VIII of the treaty of Versailles. 

24 See note 11 to this commission's Administrative Decision No. II banded down this 
day. 



TREATY INTERPRETATION 187 

use and benefit of a small group of American nationals 
who are awarded full compensation and at the same time 
waive reimbursement for the cost of the war which falls 
on all American taxpayers alike? 

If it were competent for this commission to impose such 
a penalty, what penalty stated in terms of dollars would 
suffice as a deterrent? And if this commission should 
arrogate to itself the authority to impose in the form of 

te i-iii iv • i Treaty con- 

damages a penalty which would effectively serve as astruction. 
deterrent, where lie the boundaries of its powers? It is 
not hampered with any constitutional limitations save 
those found in the treaty; and if the power to impose a 
penalty exists under the treaty may not the commission 
exercise that power in a way to affect the future political 
relations of the two Governments ? 25 The mere statement 
of the question is its answer. Putting the inquiry only 
serves to illustrate how repugnant to the fundamental 
principles of international law is the idea that this com- 
mission should treat as justiciable the question as to what 
penalty should be assessed against Germany as a punish- 
ment for its alleged wrongdoing. It is our opinion that 
as between sovereign nations the question of the right 
and power to impose penalties unlimited in amount is 
political rather than legal in its nature, and therefore not 
a subject within the jurisdiction of this commission. 

The treaty is our charter. We can not look beyond its 
express provisions or its clear implications in assessing 
damages in any particular claim. We hold that its clear 
and unambiguous language does not authorize the impo- 
sition of penalties. Hence the fundamental maxim "It 
is not allowable to interpret that which has no need of 
interpretation" applies. 26 But all of the rules governing 
the interpretation of treaties would lead to the same 
result were it competent for us to look to them. Some 
of these are: The treaty is based upon the resolution of 
the Congress of the United States, accepted and adopted 
by Germany. The language, being that of the United 
States and framed for its benefit, will be strictly construed 
against it. 27 Treaty provisions must be so construed as 

25 Vattel, Book II, Cliap. XVIIT, sec. 329. 

20 Vattel, Book II, Chap. XVII, sec. 263. 

27 Vattel, Book II, Chap. XVII, sec. 264: Digest of Justinian, Book II, Title XIV, 
par. 39, Monro translation, 1904; "Treaties— Their Making and Enforcement" by Sam- 
uel B. Crandall, 2d (1916) edition (hereinafter cited as "Crandal"), sec. 171, p. 401; 
Pothier on Obligations (Evans, 1806), Vol. I, p. 58 (seventh rule, Art. VII, Chap. I, Pt. 
I): Woolsey on International Law, sixth (1891) edition, sec. 113; opinion of Ralston, um- 
pire, Italian-Venezuelan Mixed Claims Commission, Sambiaggio case, Venezuelan Ar~ 
bitrations 1903, pp. 666 and 688-689. 



188 CLAIMS COMMISSION UNITED STATES AND GERMANY 

to best conform to accepted principles of international 
law rather than in derogation of them. 28 Penal clauses 
in treaties are odious and must be construed most strongly 
against those asserting them. 29 

The treaty is one between two sovereign nations — a 
treaty of peace. There is no place in it for any vindictive 
or punitive provisions. Germany must make compensa- 
Decision. tion and reparation for all losses falling within its terms 
sustained by American nationals. That compensation 
must be full, adequate, and complete. To this extent 
Germany will be held accountable. But this commission 
is without power to impose penalties for the use and 
benefit of private claimants when the Government of 
the United States has exacted none. 

This decision in so far as applicable shall be determina- 
tive of all cases growing out of the sinking of the steam- 
ship Lusitania. All awards in such cases shall be made 
as of this date and shall bear interest from this date at 
the rate of 5 per cent per annum. 

Done at Washington November 1, 1923. 

Edwin B. Parker, 

Umpire. 

Concurring in the conclusions : 

Chandler P. Anderson, 

American Commissioner. 

W. KlESSELBACH, 

German Commissioner. 

28 Opinion of Plumley, umpire, in Arao Mines (Ltd.) case, British-Venezuelan Mixed 
Claims Commission, pp. 344 and 386-387 Venezuelan Arbitrations 1903; reference to 
Sambiaggio case in note 27 above; Vilas v. Manila, 1911, 220 United States 345, 358-359; 
Crandall, sec. 170. 

2 fl Vattel, Book II, Chap. XVII, sees. 301-303; Crotius, Book II, Chap. XVI, Sec. X 
and par. 3 of Sec. XII. 






NAVAL AND MILITARY WORKS OR MATERIAL 189 

OPINION CONSTRUING THE PHRASE "NAVAL AND 
MILITARY WORKS OR MATERIALS" AS APPLIED TO 
HULL LOSSES AND ALSO DEALING WITH REQUISI- 
TIONED DUTCH SHIPS 

March 25, 1924. 

(Mixed Claims Commission, United States and Germany, p. 75) 

The United States of America on its own behalf, acting through the 
United States Shipping Board and/or the United States Shipping 
Board Emergency Fleet Corporation, and on behalf of certain 
of its nationals suffering losses at sea, v. Germany. Docket 
Nos. 29, 127, and 546-556 inclusive. 

Parker, Umpire, delivered the opinion of the com- 
mission, the German Commissioner concurring in the 
conclusions, and the American commissioner concurring 
save as his dissent is indicated: 

There is here presented a group of 13 typical cases in 
which the United States, in some instances on its own 
behalf and in others on behalf of certain of its nationals, 
is seeking compensation for losses suffered through the 
destruction of ships by Germany or her allies during the 
period of belligerency. These claims do not embrace 
damages resulting from loss of life, injuries to persons, 
or destruction of cargoes but are limited to losses of the 
ships themselves, sometimes hereinafter designated "hull 
losses. " 30 

With the exception of the construction and the ap- Limitation of 

... . question. 

plication to requisitioned Dutch ships of the phrase 
" property * * * belonging to" as found in para- 
graph 9 of Annex I to Section I of Part VIII of the 
treaty of Versailles as carried by reference into the 
treaty of Berlin, the sole question considered and decided 
in this opinion is: Were any or all of the 13 hulls in 
question when destroyed "naval and military works or 
materials" within the meaning of that phrase as used 
in that paragraph? 

The cases in which an affirmative answer to this 
question is given must, on final submission, be dismissed 
on the ground that Germany is not obligated to pay such 
losses under the treaty of Berlin. The cases in which 
a negative answer is given will be reserved by the com- 
mission for further consideration of the other issues 
raised. 

The commission is not here concerned with the quality 
of the act causing the damage. The terms of the treaty 

30 Reference is made to definition of terms contained in Administrative Decision No. I. 



190 CLAIMS COMMISSION UNITED STATES AND GERMANY 

fix and limit Germany's obligations to pay, and the com- 
mission is not concerned with inquiring whether the act 
for which she has accepted responsibility was legal or 
illegal as measured by rules of international law. It is 
probable that a large percentage of the financial obliga- 
tions imposed by said paragraph 9 would not arise under 
the rules of international law but are terms imposed by 
the victor as one of the conditions of peace. 
struc e tIon US con " ^ ne P nrase "naval and military works or materials" 
has no technical signification. It is not found in previous 
treaties. It has never been construed judicially or by any 
administrative authority save the reparation commission. 
The construction by that body is not binding on this 
commission nor is it binding on Germany under the 
treaty of Berlin. It will, however, be considered by this 
commission as an early ex parte construction of this 
language of the treaty by the victorious European allies, 
who participated in drafting it and are the principal 
beneficiaries thereunder. 

The construction of this phrase is of first impression, 

and the commission must, in construing and applying it, 

look to its context. It is found in the principal reparation 

Treaty of Ver- provisions of the treaty of Versailles as embraced in 

siillos • 

article 232 and the Annex I expressly referred to therein. 
That article, after reciting that the " allied and associated 
governments recognize that the resources of Germany are 
not adequate * * * to make complete reparation 
for all" losses and damages to which they and their 
nationals had been subjected as a consequence of the war, 
provides that: 

"The allied and associated Governments, however, 
require, and Germany undertakes, that she will make 
compensation for all damage done to the civilian popula- 
tion of the allied and associated powers and to their 
property during the period of the belligerency of each 
as an allied or associated power against Germany by 
such aggression by land, by sea, and from the air, and in 
general all damage as defined in Annex I hereto." 
Reparation It is apparent that the controlling consideration in the 

minds of the draftsmen of this article was that Germany 
should be required to make compensation for all damages 
suffered by the civilian population of each of the allied 
and associated powers during the period of its belligerency. 
It was the reparation of the private losses sustained by the 
civilian population that was uppermost in the minds of 



NAVAL AND MILITARY WORKS OR MATERIAL 191 

the makers of the treaty rather than the public losses of 
the governments of the allied and associated powers which 
represented the cost to them of prosecuting the war. 32 

Article 232 makes express reference to " Annex I 
hereto" as more particularly defining the damages for 
which Germany is obligated to make compensation. 
Annex I provides that " compensation may be claimed 
from Germany under article 232 above in respect of the 
total damage under the following categories." Then 
follows an enumeration of 10 categories, of which Nos. 
1, 2, 3, 4, 8, and 10 deal solely with damages suffered by 
the civilian populations of the allied and associated 
powers. Categories 5, 6, and 7 deal with reimbursement 
to the governments of the allied and associated powers as 
such of the cost to them of pension and separation allow- 
ances, rather than damages suffered by the " civilian 
population." The Government of the United States has 
expressly committed itself against presenting claims 
arising under these three categories. 33 There remains of 
the 10 categories enumerated in Annex I only category 9, 
which reads : 

" (9) Damage in respect of all property wherever situ- 
ated belonging to any of the allied or associated states cl ^ s x ce P ted 
or their nationals, with the exception of naval and military 
works or materials, which has been carried off, seized, 
injured or destroyed by the acts of Germany or her allies 
on land, on sea, or from the air, or damage directly in 
consequence of hostilities or of any operations of war." 

Under the terms of this paragraph arise Germany's 
financial obligations, if any, to pay the claims now before 
this commission for the hulls destroyed during the period 
of belligerency. 

It can not be doubted that the language of this para- 
graph 9 so expands that used in article 232 as to include Government 

1 • i 'ill <• Property. 

certain property losses sustained by the governments of 
the allied and associated powers as well as the losses sus- 
tained by their " civilian populations." It was found that 

32 The reparations provided for in the exchange of notes between the United States 
and Germany culminating in the armistice of November 11, 1918, executed by the mili- 
tary representatives of the belligerent powers, were limited to reparations for losses to 
the civilian population. The Lansing note of November 5, 1918, provides that the allied 
powers "understand that compensation will be made by Germany for all damage done 
to the civilian population of the Allies and their property by the aggression of Germany 
by land, by sea, and from the air." 

Italics appearing throughout this opmion are, as a rule, added by the commission. 

33 See note 11 of Administrative Decision No. 11, pp. 14 and 15 of Decisions and 
Opinions of this commission. 



192 CLAIMS COMMISSION UNITED STATES AND GERMANY 

property belonging to the victorious powers not designed 
or used for military purposes had been destroyed or dam- 
aged, so in addition to requiring that Germany compen- 
sate the civilian population for their property losses this 
paragraph requires that Germany shall also compensate 
those governments for government losses suffered through 
destruction or damage with respect to property of a non- 
military character. Much property belonging to the 
governments of the victorious powers, especially to the 
governments of the European allies, and not impressed 
by reason of its inherent nature or of its use with a military 
character, had been destroyed or damaged. Under this 
provision it is clear that Germany is obligated to com- 
pensate the governments suffering such losses. But, 
reading the reparation provisions as a whole, it is equally 
clear that the allied and associated powers did not intend 
to require that Germany should compensate them, and 
that Germany is not obligated to compensate them, for 
losses suffered by them resulting from the destruction or 
damage of property impressed with a military character 
either by reason of its inherent nature or b}^ the use to 
which it was devoted at the time of the loss. Property 
so impressed with a military character is embraced within 
the phrase " naval and military works or materials" as 
used in paragraph 9, which class described by this phrase 
will sometimes hereinafter be referred to as " excepted 
class." 

This phrase, in so far as it applies to hulls for the loss of 
which claims are presented to this commission, relates 
solely to ships operated by the United States, not as 
merchantmen, but directly in furtherance of a military 
operation against Germany or her allies. A ship pri- 
vately operated for private profit can not be impressed 
with a military character, for only the government can 
lawfully engage in direct warlike activities. 
"Materials." -gy ^ e t erms f ^ e treaty of Versailles, the French and 

English texts are both authentic. The French word 
"materiel," in the singular, is used in the French text, 
against which the English word " materials," in the plural, 
is used in the English text. Littre, whose dictionary is 
accepted as an authority on the French language, defines 
"materiel" thus: "The articles of all kinds taken as a 
whole which are used for some public service in contra- 
distinction to personnel," and he gives as an example 



MATERIALS 193 

materiel of an army, the baggage, ammunition, etc., as 
distinguished from the men. 

The Century Dictionary defines this French word 
thus: "The assemblage or totality of things used or 
needed in carrying on any complex business or operation, 
in distinction from the 'personnel, or body of persons, 
employed in the same : applied more especially to military 
supplies and equipments, as arms, ammunition, baggage, 
provisions, horses, wagons, etc." 

The English word "materials" means the constituent 
or component parts of a product or "that of or with 
which any corporeal thing is or may be constituted, made, 
or done" (Century Dictionary). 

Reading the French and English texts together, it is 
apparent that the word "materials" is here used in a 
broad and all inclusive sense, with respect to all physical 
properties not attached to the soil, pertaining to either 
the naval or land forces and impressed with a military 
character; while the word "works" connotes physical 
properties attached to the soil, sometimes designated in 
military parlance as "installations," such as forts, naval 
coast defenses, arsenals, dry docks, barracks, canton- 
ments, and similar structures. The term "materials" 
as here used includes raw products, semifinished prod- 
ucts, and finished products, implements, instruments, 
appliances, and equipment, embracing all movable 
property of a physical nature from the raw material to 
the completed implement, apparatus, equipment, or 
unit, whether it were an ordinary hand grenade or a 
completed and fully equipped warship, provided that it 
was used by either the naval or land forces of the United 
States in direct furtherance of a military operation against 
Germany or her allies. 

While it is difficult if not impossible to so clearly define 
the phrase "naval and military works or materials " that 
the definition can be readily applied to the facts of every 
claim for the loss of a hull pending before this commission, 
the true test stated in general terms is: Was the ship 
when destroyed being operated by the United States for 
purposes directly in furtherance of a military operation 
against Germany or her allies? If it was so operated, 
then it is embraced within the excepted class and Germany 
is not obligated to pay the loss. If it was not so operated, 
it is not embraced within the excepted class and Germany 
is obligated to pay the loss. 
33474— 25t 14 



194 CLAIMS COMMISSION UNITED STATES AND GERMANY 

The United States Shipping Board (sometimes herein- 
after referred to as " Shipping Board") exerted such a 
far-reaching influence over American shipping both prior 
to and during the period of American belligerency that 
the scope and effect of its activities and powers must be 
clearly understood in order to reach sound conclusions 
with respect to the cases here under consideration. 
Board 1 p p * n 8 The Shipping Board was established in pursuance of the 
* act of the Congress of the United States of September 7, 
1916 (39 Statutes at Large, 728), entitled "An act to 
establish a United States Shipping Board for the purpose 
of encouraging, developing, and creating a naval auxiliary 
and naval reserve and a merchant marine to meet the 
requirements of the commerce of the United States with 
its Territories and possessions and with foreign countries; 
to regulate carriers by water engaged in the foreign and 
interstate commerce of the United States; and for other 
purposes." The act as amended provided that the 
members of the board should be appointed by the Presi- 
dent subject to confirmation by the Senate; that they 
should be selected with due regard for the efficient dis- 
charge of the duties imposed on them by the act; that 
two should be appointed from States touching the Pacific 
Ocean, two from States touching the Atlantic Ocean, 
one from States touching the Gulf of Mexico, one from 
States touching the Great Lakes, and one from ' the 
interior, but that not more than one should be appointed 
from the same State and not more than four from the 
same political party. All employees of the board were 
selected from lists supplied by the Civil Service Commis- 
sion and in accordance with the civil-service law. The 
board was authorized to have constructed and equipped, 
as well as "to purchase, lease, or charter, vessels suitable, 
as far as the commercial requirements of the marine trade 
of the United States may permit, for use as naval auxil- 
iaries or Army transports, or for other naval or military 
purposes." 

The President was authorized to transfer "either per- 
manently or for limited periods to the board such vessels 
belonging to the War or Navy Department as are suitable 
for commercial uses and not required for military or naval 
use in time of peace. " 

Provision was made for the American registry and 
enrollment of vessels purchased, chartered, or leased from 
the board and it was provided that "Such vessels while 



SHIPPING BOARD 195 

employed solely as merchant vessels shall be subject to all 
laws, regulations, and liabilities governing merchant 
vessels, whether the United States be interested therein as 
owner, in whole or in part, or hold any mortgage, lien, or 
other interest therein." 

The board was authorized to create a corporation with ti ™ et Corpora ' 
a capital stock of not to exceed $50,000,000 "for the 
purchase, construction, equipment, lease, charter, main- 
tenance, and operation of merchant vessels in the commerce 
of the United States" In pursuance of this latter pro- 
vision the United States Shipping Board Emergency 
Fleet Corporation (sometimes hereinafter referred to as 
"Fleet Corporation") was organized under the laws of 
the District of Columbia with a capital stock of $50,000,- 
000, all fully paid and all held and owned by the United 
States save the qualifying shares of the trustees. Under 
the terms of the act, this corporation could not engage 
in the operation of vessels owned or controlled by it 
unless the board should be unable to contract with citizens 
of the United States for the purchase or operation thereof. 

Then followed in the act numerous provisions clothing 
the board with broad powers with respect to transpor- 
tation by water of passengers or property in interstate 
and foreign commerce, provisions for investigations and 
hearings, for the fixing of maximum rates, and for 
penalties for failure to observe the terms of the statutes 
and the orders of the board. 

The act as amended provided that it "may be cited as 
'shipping act, 1916.' " The board created by virtue of 
its terms possessed none of the indicia of a military 
tribunal. Its members, all civilians, were drawn from 
remote sections, that the board might represent the com- 
mercial and shipping interests of the entire Nation. The 
act taken in its entirety indicates that the controlling 
purpose of the Congress was to promote the development 
of an American merchant marine and also u as far as the 
commercial requirements of the marine trade of the United 
States may permit" provide vessels susceptible of "use 
as naval auxiliaries or Army transports, or for other 
naval or military purposes". This act was approved 
September 7, 1916, during the period of American 
neutrality. The World War had found American 
nationals engaged in an extensive foreign commerce but 
without an adequate merchant marine to keep it afloat. 
The channels of American foreign commerce would have 



196 CLAIMS COMMISSION UNITED STATES AND GERMANY 

been choked but for the use of belligerent bottoms with 
the resultant risks. This situation, coupled with the 
possibility of the developments of the war forcing 
American participation therein, prompted the enactment 
of this statute for the creation of a merchant marine and 
setting up the machinery for the mobilization and 
control of all American shipping. 

Following America's entrance into the war on April 6, 
1917, Congress through the enactment of several statutes 
clothed the President of the United States with broad 
powers including the taking over of title or possession 
by purchase or requisition of constructed vessels or parts 
thereof or charters therein and the operation, management 
and disposition of such vessels and all other vessels 
theretofore or thereafter acquired by the United States. 
From time to time through Executive orders the President 
being thereunto duly authorized, delegated these powers 
with respect to shipping to the Shipping Board, to be 
exercised directly by it or, in its discretion, by it through 
the Fleet Corporation. 
Requisition. Under these powers the Shipping Board and the Fleet 
Corporation proceeded to requisition the use of all power- 
driven steel cargo vessels of American registry of 2,500 
tons dead weight or over and all passenger vessels of 
iVmerican registry of 2,500 tons gross registry or over 
adapted to ocean service. Immediately upon the execu- 
tion of these requisition orders a " requisition charter" 
was entered into between the Shipping Board and the 
owner, fixing the compensation to be paid by the United 
States to the owner for the use of the vessel and provid- 
ing for the operation of the vessel on what was known 
as the " time-form" basis, the board reserving the right 
to change the charter to a " bare-boat" basis on giving 
five days' notice. The time-form basis provided for the 
operation of the vessel by the owner as agent of the United 
States and fixed the terms and conditions of such opera- 
tion, stipulating, among other things, that the owner should 
pay all expenses of operation, including the wages and 
fees of the master, officers, and crew, and should assume 
all marine risks, including collision liabilities, but that the 
United States should assume all war risks. The Shipping 
Board directed the owner as its agent to operate the vessel 
in its regular trade. The bare-boat basis 'provided that 
all the expenses of manning, victualling, and supplying the 
vessel and all other costs of operation should be borne by 



REQUISITION 197 

the United States. This latter form was used in requisi- 
tioning ships for service in the War Department, and also 
in some other instances where requisitioned ships were 
delivered by the Shipping Board to third parties to oper- 
ate as agents of the United States. When a ship was de- 
livered by the Shipping Board to the War Department 
no formal agreement was entered into between these two 
Government agencies, but the War Department recog- 
nized the agreement between the Shipping Board and 
the owner of the vessel and duly accounted to the Ship- 
ping Board under the terms and conditions of the requisi- 
tion charter. 

When the requisitioned vessel was redelivered to the 
owner for operation by him under a time-form requisition 
charter, an " operating agreement" was also entered into 
between the Fleet Corporation, acting for the United 
States, and the owner, whereby the owner as agent of 
the Fleet Corporation undertook the operation of the 
vessel, including the procurement of cargoes and the 
physical control of the ship. For these services the owner 
as agent received stipulated fees and commissions in ad- 
dition to the compensation which he received as owner 
for the use of the vessel as provided in the requisition 
charter. 

When the vessel was requisitioned under a bare-boat 
form charter and delivered to a third party other than 
an established government agency to operate, a " manag- 
ing agreement" was entered into between the Fleet Cor- 
poration and such third party whereby the latter as 
agent for the Fleet Corporation assumed physical control 
of the ship, receiving fees and commissions for such 
services. 

It was not the practice of the Shipping Board or the 
Fleet Corporation to issue detailed and minute instruc- 
tions to agents operating requisitioned vessels with re- 
spect to the conduct of the particular voyage or the 
particular cargoes which such vessels should carry. These 
operating or managing agents were selected because of 
their experience and ability in handling commercial ship- 
ping. While the United States reserved to itself full 
power and authority to exercise complete control over 
vessels requisitioned by it, such control was in practice 
delegated to the operating or managing agent, who ex- 
ercised his sound discretion in the management of ships 
operated by him as agent, with a view to preventing any 



198 CLAIMS COMMISSION UNITED STATES AND GERMANY 

unnecessary dislocation of trade or disturbance in the 
established channels of commerce. 

Thus the United States through the agencies of the 
Shipping Board and the Fleet Corporation effectively 
and speedily mobilized all American shipping, exercising 
such control over it that, as emergency required, it could 
be immediately utilized by the United States in the 
prosecution of its military operations against its enemies; 
but pending such emergency the requisitioned vessels 
were commercially operated, by their owners or by third 
parties, as agents of the United States, and these agents 
were given the greatest latitude and freedom of action 
in the management and control of vessels operated by 
them in order to prevent any unnecessary disturbance 
in the free movement of commerce. Under the requisi- 
tion charter it was expressly stipulated that the vessel 
" shall not have the status of a public ship, and shall be 
subject to all laws and regulations governing merchant 
vessels * * *. When, however, the requisitioned vessel 
is engaged in the service of the War or Navy Department, the 
vessel shall have the status of a public ship, and * * * 
the master, officers, and crew shall become the immediate 
employees and agents of the United States, with all the 
rights and duties of such, the vessel passing completely 
into the possession and the master, officers, and crew ab- 
solutely under the control of the United States." At 
another point in the requisition charter it was stipulated 
that the master "shall be the agent of the owner in all 
matters respecting the management, handling, and navi- 
gation of the vessel, except when the vessel becomes a public 
ship. ,} 

The German agent contends that presumptively the 
control by the Shipping Board thus exercised over vessels, 
^Military char- Aether owned by the United States or held by the United 
States under requisition, was in furtherance of the con- 
duct of the military effort of the United States against 
Germany, and hence — in the absence of satisfactory 
proof to the contrary, the burden being on the United 
States — all such vessels must be classed as "naval and 
military works or materials." The commission has no 
hesitation in rejecting this contention. After America 
entered the war, its entire commerce and industry were 
in a broad sense mobilized for war. Because of the 
urgent war requirements, steel and numerous other 
products became government-controlled commodities, 



MILITARY WORKS 199 

their uses being rigidly restricted to war purposes. Yet 
it can not be contended that the fact that an American 
steel plant was operated 100 per cent on war work raised 
a prima facie presumption of its conversion into " military 
works." The railroads of the United States were taken 
over and operated by the Government as a war measure, 
but this did not presumptively convert them into " mili- 
tary works or materials" within the meaning of that term 
as used in the treaty of Versailles. Nor can the mobiliza- 
tion for war of American shipping through the agency of 
the Shipping Board create even a rebuttable presumption 
that the vessels so mobilized, whether owned or requi- 
sitioned by the United States, had a military character. 
Nothing short of their operation by the United States 
directly in furtherance of a military operation against 
Germany can have such an effect. So long as such vessels 
were performing the functions of merchant vessels, even 
though engaged in a service incident to the existence of a 
state of war, they will not fall within the excepted class. 

Construing the shipping act, the Executive orders of 
the President, and the provisions of an operating agree- 
ment similar to that hereinbefore described, the Supreme 
Court of the United States held a vessel owned by the 
Fleet Corporation but operated by an American national 
as an agent of the Shipping Board was a merchant vessel 
and subject to libel in admiralty for the consequences of 
a collision. 34 It is apparent that a vessel either owned or 
requisitioned by the Shipping Board or Fleet Corporation 
and operated by an agent of the United States under such 
an operating or managing agreement as hereinbefore 
described was a merchantman and in no sense impressed 
with a military character. 

When, however, the Shipping Board delivered such 
vessels to either the War Department or the Navy 
Department of the United States their status at once 
changed and they became public ships; their masters, 
officers, and crews at once became employees and agents 
of the United States with all of the resultant rights and 
duties; and it will be presumed that such delivery was 
made to the military arms of the Government to enable 
them to be used (in the language of section 5 of the 
shipping act) " as naval auxiliares or army transports, 
or for other naval or military purposes" Such assignment 
of vessels to and their operation by the War Department 

'« The Lake Monroe (1919) 250 U. S. 246. 



200 CLAIMS COMMISSION UNITED STATES AND GERMANY 

or the Navj 7 " Department will be treated by the commis- 
sion as prima facie but not conclusive evidence of their 
military or naval character. The facts in each case will 
be carefully examined and weighed by the commission 
in order to determine whether or not the particular ship, 
at the time of her destruction was operated by the United 
States directly in furtherance of a miliatry operation 
against Germany or her allies. If she was so operated, 
she will fall within the excepted class; otherwise she will 
not. 

The application of this general rule to the facts as 
disclosed by the records in the 13 typical cases, prelim- 
inarily submitted will illustrate its scope and its limita- 
tions. 

Case No. 127, steamship Rockingham 

steamer Rod- ^ ne steamship Rockingham, owned and operated by the 
ingham. Garland Steamship Corporation, an American national, 

sailed on April 16, 1917, from Baltimore, Md., via Nor- 
folk, Va., which she left April 19, bound for Liverpool, 
England, with a general cargo for numerous consignees. 
Facts of case. She was armed for defensive purposes with two 4-inch 
guns, one fore and one aft, manned by a civilian crew of 
36, and in addition had a naval gun crew of 13 enlisted 
men. She was sunk by a German submarine on May 1, 
1917, before reaching Liverpool. In the early part of the 
afternoon of May 1, the weather being hazy, two small 
objects were sighted by the Rockingham at a distance of 
approximately 5 miles, one on the starboard bow, the 
other on the port quarter, and assuming that they were 
German submarines the master steered a zig-zag course 
in accordance with instructions issued by the United 
States Navy Department designed to elude the opera- 
tions of hostile submarines. The two objects were seen 
to submerge and thereafter were not sighted until after 
the sinking. The gun crew of the Rockingham had, 
therefore, no target to fire upon, and no effort was made 
at resistance. The attack was upon the starboard side, 
was made without warning the torpedo entering the 
engine room, tearing a great hole in the ship and causing 
her to sink in 25 minutes. 

The German agent contends that the Rockingham at 
the time of her destruction had lost her status as a 
private peaceful trading ship and had become " naval 
and military * * * materials" as that term is used 



ARMING MERCHANT VESSELS 201 

in the treaty because: (1) she was armed, (2) her guns 
were manned by a naval gun crew, (3) she was operated 
in accordance with instructions given by the Navy 
Department of the United States although by a civilian 
master with a civilian crew. The contention is that, 
notwithstanding such arming and manning and operation 
may have been entirely legal and justified, they never- 
theless stripped the Rockingham of her character of a 
peaceful merchantman and impressed her with a military 
character. 

This contention must be rejected. It is clear that the 
Rockingham was being privately operated by an Ameri- 
can national for private profit. She was armed in pur- 
suance of the policy adopted by the Government of the 
United States, of which all foreign missions in Washing- 
ton were given formal notice on March 12, 1917, during 
the period of American neutrality, in the following 
language : 

"In view of the announcement of the Imperial German Arming of 

f_ . merchant vessels. 

Government on January 31, 1917, that all ships, those 
of neutrals included, met within certain zones of the 
high seas would be sunk without any precautions being 
taken for the safety of the persons on board, and without 
the exercise of visit and search, the Government of the 
United States, has determined to place upon all American 
merchant vessels sailing through the barred areas an 
armed guard for the protection of the vessels and the 
lives of the persons on board." 

The instructions given by the Navy Department of the 
United States to the masters of these merchant vessels 
and to the commanders of the naval gun crews clearly 
indicate that the purpose of so arming and operating 
such vessels was to protect against the offensive operations 
of German submarines and to elude or escape from them 
if possible, and not to initiate offensive operations against 
such submarines. The control in the nature of routiner 
instructions which the civilian masters received from the 
Navy Department and followed was designed to avoid 
and to escape from the submarine, not to seek them out 
and destroy them. 

The arming for defensive purposes of a merchantman 
and the manning of such armament by a naval gun crew, 
coupled with the routing of such ship by the Navy 
Department of the United States for the purpose of 



202 



CLAIMS COMMISSION UNITED STATES AND GERMANY 



Decision. 



The Motano. 



Facts of case. 



avoiding the danger of submarines and the following by 
the civilian master of the ship of instructions given by 
the Navy Department for the defense of the ship when 
in danger of attack by submarines, certainly do not 
change the juridical status of the ship or convert it 
from a merchant ship to a war ship or make of it naval 
material. 

The commission holds that the Rockingham, at the 
time of her destruction was being operated as a merchant 
vessel and that she does not fall within the excepted class. 

Case No. 551, steamship Motano — oil tanker 

The steamship Motano, owned and operated by the 
Standard Oil Co. of New Jersey, an American national, 
sailed from New York on July 6, 1917, with a cargo of fuel 
oil for account of the British ship control for use of the 
British Admiralty. She left Plymouth with other vessels 
convoyed by three British destroyers for Portsmouth, 
England, as her final discharge port. She was armed for 
defensive purposes with two 3-inch guns, one fore and one 
aft, and had a civilian master and crew of 33 men and a 
gun crew of 13 enlisted men of the United States Navy. 
She was sunk on July 31, 1917, on her voyage between 
Plymouth and Portsmouth by a torpedo fired by a Ger- 
man submarine. The air was hazy, the sea choppy, the 
submarine had not been sighted, and no resistance was 
made by the naval gun crew. The Motano was insured 
with the British Government for $616,000, which sum has 
been paid to the claimant, and this claim is made for the 
difference between that amount and the true value of the 
vessel, which difference is placed at the sum of $594,000, 
plus interest and expenses. 

The German agent contends that the Motano at the 
time of her destruction constituted " naval * * * 
works or materials " because (1) she carried armament 
susceptible of use for hostile purposes and was manned 
by a naval gun crew, (2) she was convoyed by regular 
fighting forces of a belligerent power, and (3) she was con- 
trolled by the belligerent British Government and used 
for warlike purposes. The commission rejects this con- 
tention because it is apparent that the Motano was pri- 
vately owned and privately operated for private profit, 
was not employed or designed to be employed directly in 
furtherance of a military operation of the United States 



ENEMY CONVOY 



203 



Enemy convoy 



or its associated powers against Germany or her allies, 
and was not impressed with a military character. 

We have heretofore examined the test of armament 
manned by a naval gun crew on a privately operated 
commercial ship and held that it did not have the effect 
of converting such ship into naval material. 

The German agent with great earnestness and ability 
insists that a ship associating itself with a belligerent 
convoy assumes the character of its associates and 
that when it becomes a part of the convoy flotilla, 
which is a military unit and subject to naval instruc- 
tions and naval control, it participates in hostilities 
and must be classed as naval material. We have no 
quarrel with the contention that ' a vessel, whether neu- 
tral or belligerent, forming part of a convoy under bel- 
ligerent escort may, through the methods prescribed by 
international law, be lawfully condemned and destroyed 
as a belligerent. But that is not the question before 
this commission. If we assume that the Motano — a 
belligerent merchantman — was lawfully destroyed, this 
does not affect the result. The fact that the Motano, 
because of its helpless and nonmilitary character, sought 
the protection of a convoy and voluntarily subjected 
itself to naval instructions as to routing and operation, for 
the purpose of avoiding the German submarines rather 
than seeking them out to engage them in combat, cer- 
tainly can not, by some mysterious and alchemic process, 
have the effect of transforming the ship from a merchant- 
man into naval material. The control exercised by the 
British Government over the Motano was not such as to 
affect its status. Such control was limited to directions 
looking to the protection of the vessel and the further- 
ance of its commercial activities, and not directly in fur- 
therance of any military operation against Germany for 
her allies. 

The commission therefore concludes that the Motano 
at the time of her destruction maintained her character 
as a peaceful commercial vessel and that she does not 
fall within the excepted class. 

Case No. 29, steamship Pinar del Rio 

The steamship Pinar del Rio, owned by the American nvardeiRio, 
& Cuban Steamship Line (Inc.), an American national, 
was requisitioned bv the United States through the 



Decision. 



204 CLAIMS COMMISSION UNITED STATES AND GERMANY 

Shipping Board, and a time-form requisition charter was 
entered into February 4, 1918. By the terms of this 
charter the owner became the agent of the Shipping 
Board and as such continued to operate the ship. She 
was unarmed and manned by a civilian crew. While en 
route from Cuba to Boston with a cargo of sugar she 
was sunk ; on June 8, 1918, through gunfire by a German 
submarine. 

It is apparent that at the time of her destruction she 
was being operated as a merchant vessel and in no sense 
impressed with a military character. She does not, 
therefore, fall within the excepted class. 



The Rochester, 



The Moreni. 



Case No. 550, steamship Rochester 

The steamship Rochester, owned and operated by the 
Rochester Navigation Corporation, an American na- 
tional, after having discharged a general cargo at Man- 
chester, England, sailed from that port in ballast October 
26, 1917. She was armed for defensive purposes with 
two 3-inch guns, mounted one fore and one aft, and had 
a civilian crew of 36 men and a naval gun crew of 13 
men. After leaving Manchester she with nine other 
merchantmen was convoyed for several days by five 
destroyers and one armed cruiser, and, after the convoy- 
ing ships returned to their base, the Rochester was sunk 
on November 2, 1917, by a torpedo and shells fired from 
a German submarine. 

It is apparent that the Rochester at the time of her 
destruction was being operated as a merchant vessel and 
was not in any sense impressed with a military character. 
The commission, therefore, finds that the Rochester does 
not fall within the excepted class. 

Case No. 555, steamship Moreni — oil tanker 

The steamship Moreni, owned and operated by the 
Standard Oil Co. of New Jersey, an American national, 
sailed from Baton Rouge, La., May 19, 1917, with a 
cargo of gasoline consigned to the Italian-American Oil 
Co., at Savona, Italy, to call at Gibraltar for orders. 
She was armed for defensive purposes with two 4-inch 
guns, one fore and one aft, and manned with a civilian 
crew of 35 and a naval gun crew of 12. After call- 
ing at Gibraltar for orders she sailed from that port 
June 10, 1917, and on the morning of June 12 was fired 



REQUISITIONED SHIPS 205 

upon and finally sunk by a German submarine after a 
running fight in which the Moreni endeavored to escape 
and in which 200 to 250 shots were fired by the submarine 
and about 150 shots by the Moreni. 

It is apparent that the Moreni was at the time of her 
destruction being privately operated for private profit as 
a merchant vessel, and for the reasons heretofore given 
the commission holds that she does not fall within the 
excepted class. 

Case No. 549, steamship Alamance 

The steamship Alamance, owned by the Garland Steam- The Alamance - 
ship Corporation, an American national, was requisi- 
tioned by the Shipping Board October 20, 1917, and at 
once redelivered to the Garland Steamship Corporation 
under a time-form requisition charter, executed Decem- 
ber 28, 1917, by the terms of which the owner operated 
the vessel as agent of the Shipping Board. She was 
manned with a civilian crew of 38 men, armed for defen- 
sive purposes with two 4-inch guns, one fore and one aft, 
which were manned by a naval gun crew of 19 men. On 
February 5, 1918, while en route from Hampton Roads, 
Va., to Liverpool, England, with a cargo consisting prin- 
cipally of tobacco, cotton, zinc, and lumber, and while in 
a convoy of 15 ships escorted by naval vessels, she was 
torpedoed and sunk by a German submarine. 

For the reasons heretofore given the commission holds 
that at the time of her destruction the Alamance was a 
merchant vessel and that she does not fall within the 
excepted class. 

Case No. 553, steamship Tyler 

The steamship Tyler, owned by the Old Dominion The TyUr. 
Steamship Co., of New York, an American national, was 
requisitioned by the Shipping Board November 29, 1917, 
and a time-form requisition charter executed on January 
4, 1918. On March 2, 1918, the Shipping Board entered 
into an operating agreement with Chase Leaveth & Co. 
by the terms of which they operated the Tyler as agent 
of the Shipping Board, and she was being so operated at 
the time of her destruction. She was manned by a 
civilian crew, armed for defensive purposes with two 
3-inch guns, one fore and one aft, which were manned by 
a naval gun crew of 19 men. On April 30, 1918, the 



20G CLAIMS COMMISSION — UNITED STATES AND GERMANY 

Tyler left Genoa, Italy, in convoy, bound for New York 
in ballast. On May 2, 1918, she was sunk by torpedoes 
fired by a German submarine. 

For the reasons hereinabove given the commission 
holds that at the time of her destruction the Tyler was a 
merchantman in no sense impressed with a military char- 
acter, and hence is not within the excepted class. 

Case No. 554, steamship Santa Maria — oil tanker 

Maria. Santa The steamship Santa Maria, owned by the Sim Co., an 
American national, was requisitioned by the Shipping 
Board October 12, 1917, delivered on January 14, 1918, 
and on the same day redelivered to the owner, which 
operated her as agent of the Shipping Board under a 
requisition agreement constituting a part of the requisi- 
tion charter. She sailed from Chester, Pa., the latter 
part of January, 1918, via Norfolk, Va., bound for Great 
Britain in convoy' with a cargo of fuel oil. She was man- 
ned by a civilian crew of 39 men, armed with two 4-inch 
guns, one fore and one aft, and had a naval gun crew of 
22 men. On February 25, while under convoy of British 
trawlers, she was sunk by a torpedo fired by a German 
submarine. 

The commission holds that at the time of her destruc- 
tion the Santa Maria was a merchant vessel and that she 
does not fall within the excepted class. 

Case No. 552, steamship Merdk 

The MeraJd By virtue of a proclamation of the President of the 
United States of March 20, 1918, 87 vessels of Holland 
registry and belonging to her nationals, lying in American 
ports, were, in accordance with international law and 
practice, requisitioned by the United States, the President 
in his proclamation directing that the Shipping Board 
"make to the owners thereof full compensation, in ac- 
cordance with the principles of international law." Of 
these vessels 46, including the steamships Merdk and 
Tex el, were delivered to the Shipping Board. 

The Merdk was operated as a merchantman by Wessel 
Du Val & Co., American nationals, as agents of the Ship- 
ping Board. She sailed under the American flag, was 
unarmed, and was manned by a civilian crew. While en 
route from Norfolk, Va., to Chile with a cargo of 4,000 
tons of coal she was, on August 6, 1918, captured by a 
German submarine and sunk by bombs. 



DUTCH SHIPS REQUISITIONED 207 

Case No. 556, steamship Texel The Texel 

As appears from the statement made in connection with 
the Merak case supra, the steamship Texel was one of the 
Dutch ships requisitioned by the United States and as- 
signed to the Shipping Board, after which she was oper- 
ated by the New York & Porto Rico Steamship Co. as 
agent for the Shipping Board. She was unarmed and 
manned by a civilian crew. She sailed under the Ameri- 
can flag from Ponce, P. R., on May 27, 1918, for New 
York with a cargo of sugar. On June 2, she was attacked 
by a German submarine, overhauled, and sunk by bombs. 

It is apparent that the steamships Merak and Texel 
were at the time of their destruction being operated as 
merchant vessels and in no sense impressed with a mili- 
tary character. For the reasons heretofore given the 
commission holds that neither the steamship Merak nor 
the steamship Texel falls within the excepted class, and 
that neither can in any sense be held to have constituted 
11 naval and military works or materials" as that phrase 
is used in the treaty. 

But notwithstanding this holding the German agent "Belonging, to." 
contends that these claims do not fall within the terms 
of the treaty of Berlin because these Dutch ships were not 
vessels "belonging to" the United States or its nationals 
as that term is used in the paragraph 9 here under con- 
sideration. That these ships were lawfully requisitioned, 
reduced to possession, and operated by the United States 
is conceded by Germany. It results that at the time of 
their destruction the right of the United States to possess 
and use them against all the world was absolute and 
superior to any possible contingent rights or interests of 
those Dutch nationals who owned them at the time they 
were requisitioned. That the United States had at least 
a special or qualified property in these ships there can be 
no doubt. They were lawfully in its possession, sailing 
under its flag, used as it saw fit without regard to the 
wishes of the former owners and during an emergency 
the duration of which the United States alone could deter- 
mine. There never was a time when the Dutch nationals 
who owned the ships at the time they were requisitioned 
could, as a matter of right, demand their return or impose 
any limitation whatsoever upon their operation or con- 
trol. As the United States had the absolute right against 
the whole world to possess these ships and use them as it 



208 CLAIMS COMMISSION UNITED STATES AND GERMANY 

saw fit, conditioned only upon the duty to make adequate 
compensation for their use and to return them, at a time 
to be determined by it or in the alternative to make ade- 
quate compensation, to the Dutch nationals who owned 
them at the time they were requisitioned, certain it is 
that this amounted to a special or qualified property in 
the ships tantamount to absolute ownership thereof for 
the time being. The possession of the United States was 
analagous to that of a grantee having an estate defeasible 
upon the happening of some event completely within his 
control. 

Where under the terms of a trip or time charter the 
holder of the legal title delivers to the charterer the whole 
possession and control of the ship, the charterer becomes 
the " owner" thereof during the term of the charter and 
is designated as such. 35 The British merchant shipping 
(salvage) act, 1916, provides that: " Where salvage serv- 
ices are rendered by any ship belonging to His Majesty 
* * * the Admiralty shall * * * be entitled to 
claim salvage * * * and shall have the same rights 
and remedies as if the ship * * * did not belong to 
His Majesty." The English courts have held that a 
ship requisitioned and operated by the government under 
requisition charter " belonged to" His Majesty within 
the terms of this act and hence was entitled to salvage. 36 
These decisions while helpful are not controlling in con- 
struing the phrase "Damage in respect of all property 
wherever situated belonging to " the United States or its 
nationals. "Belonging to" as here used is not a term of 
art or a technical legal term. It must be construed in 
the popular sense in which the word is ordinarily used, 
as synonymous with appertaining to, connected with, 
having special relation to. That it was used in this 
sense is evidenced by reference to this clause of the 
French text of the treaty of Versailles, which reads: 
"Dommages relatifs a toutes proprietes, en quelque lieu 
qu'elles soient situees, appartenant a." The use of the 
word "appartenant" is significant. The expression 
"belonging to" does not necessarily convey the idea that 

36 Sandeman v. Scurr (1866), L. R. 2 Q. B. 86; Marcardier v. Chesapeake Insurance Co. 
(1814), 8 Cranch 39, 49; Reed v. United States (1871), 11 Wallace 591, 600; Leary v. United 
States (1872), 14 Wallace 607, 610; Kent's Commentaries, 14th edition, Vol. Ill, p. *138; 
Scrutton, Charter parties and Bills of Lading, 11th (1923) edition, art. 2, pp. 4-9. 

3 * Admiralty Commissioners v. Page and others (1918), 2 K. B. 447, affirmed in (1919) 
1 K. B. 299. See also The Sarpen, Court of Appeal (1916), Probate Division, 306, 313; 
Master of Trinity House v. Clark (1815), 4 M. & S. 288. 



BARE-BOAT REQUISITION 209 

the indefeasible legal title to the property "in respect 
of" which the damage occurred must have vested in the 
United States or its nationals. It is sufficient that the 
United States or its nationals had such control over and 
interest, general or special, in such property as that 
injury or damage to it directly resulted in loss to them. 
Had the draftsmen of the treaty intended to restrict 
Germany's obligations to pay for damages to property in 
which the unconditional legal title was vested in the 
allied or associated States or their nationals, they would 
have used apt and well-recognized terms to express such 
limitation. On the contrary, it is evident from reading 
the reparation provisions as a whole that their purpose 
and intention was to require Germany to pay all losses 
sustained by the allied or associated States or their 
nationals resulting from " damage in respect of all prop- 
erty wherever situated" of a nonmilitary character. 

While not controlling, it is interesting to note that the 
Reparation Commission has placed a similar construction 
on the language in question, and gone a step farther than 
here indicated in holding that "Time chartered neutral 
vessels in respect of which compensation was paid by the 
claiming power might also be included [in computing the 
amount of Germany's reparation payments under para- 
graph 9 of Annex I], though not sailing under the flag 
of the power in question." 

It follows that the claims for losses resulting from the 
destruction of the steamships MeraJc and Texel fall within 
the terms of the treaty of Berlin and that Germany is 
obligated to compensate for their loss. 

Case No. 546, steamship John G. McCullough 

The steamship John G. McCullough, owned by the to ^ Mc ° ul 
United States Steamship Co., an American national, was 
requisitioned by the United States through the Shipping 
Board November 6, 1917, under a bare-boat requisition 
charter. On the same day she was delivered she was 
turned over to the War Department of the United States 
and operated with a British civilian crew, 32 in number, 
employed and paid by and in all things subject to the 
orders of the United States War Department. Under 
the requisition charter she thereupon became a public 
ship. 

She was armed with one French 90 mm. gun, which 
was manned by a British naval crew of two gunners. 



Decision i 



210 CLAIMS COMMISSION — UNITED STATES AND GERMANY 

While en route, May 18, 1918, from London, England, 
in naval convoy to Kochefort, France, with a general 
cargo for the Army oj the United States, she was destroyed, 
either by a torpedo from a German submarine, as claimed 
by the American agent, or by a mine, which may or may 
not have been of German origin. The German agent 
denies that she was torpedoed by a German submarine. 
The German Admiralty is without information with re- 
spect to her destruction. There is, however, evidence 
supporting the allegation that she was torpedoed; but 
in view of the disposition which the commission will make 
of this case the cause of her destruction is not material. 
Public ship. At the time the McCuIlough was destroyed she was a 
public ship in the possession of and operated by the 
United States through its War Department, one of the 
military arms of the Government whose every effort was 
concentrated on mobilizing and hurling men and muni- 
tions against Germany. She had been requisitioned in 
European waters. America's associates in the war had 
assisted in manning and equipping her. France had sup- 
plied armament and Great Britain had supplied a naval 
gun crew. She was transporting from England to France 
supplies for the active fighting forces of the Army of the 
United States. She possessed every indicia of a military 
character save that she was not licensed to engage in 
offensive warfare against enemy ships. Offensive opera- 
tion on the seas was not her function. The fact that the 
legal title to her had not vested in the United States is 
wholly immaterial. She was in the possession of the 
United States. It had the right against all the world 
to hold, use, and operate her and was in fact operating 
her through its War Department by a master and crew 
employed by and subject in every respect to the orders 
of the War Department. She was actively performing 
a service for the Army on the fighting front. She pos- 
sessed none of the indicia of a merchant vessel. The 
very requisition charter under which she was operating 
took pains to declare her a " public ship" and not a mer- 
chant vessel subject to the laws, regulations, and liabili- 
ties as such as was the Lake Monroe* 1 She was at the 
time of her destruction being utilized for " other * * * 
military purposes" within the meaning of that phrase as 
used in section 5 of the shipping act. She was impressed 
with a military character. 

» The Lake Monroe, (1919) 25) U. S. 24<i. 



MILITARY MATERIALS DISTINGUISHED 211 

The taxicabs privately owned and operated for profit 
in Paris during September, 1914, were in no sense mili- 
tary materials; but when these same taxicabs were requi- 
sitioned by the military governor of Paris and used to 
transport French reserves to meet and repel the oncoming 
German Army they became military materials, and so 
remained until redelivered to their owners. The auto- 
mobile belonging to the United States assigned to its 
President and constitutional commander in chief of its 
Army for use in Washington is in no sense military 
materials. But had that same automobile been trans- 
ported to the battle front in France or Belgium and used 
by the same President, it would have become a part of 
the military equipment of the Army and as such im- 
pressed with a military character. The steel rails used 
in the yards of a steel plant in Pittsburgh for shifting 
war materials from one part of the plant to another are 
not impressed with a military character, for they are 
privately operated for private profit. But if these same 
rails had been taken up and shipped to the American 
Army in France and laid by it as a part of its transporta- 
tion system, used and operated by it for transporting 
munitions and supplies to the fighting front, they would 
then have become military materials. 

So here the McCuIlough, by the terms of her requisition Decision, 
charter stamped a " public ship," actively engaged in 
transporting Army supplies to the battle front, operated 
by the War Department of the United States through 
a crew employed and paid by it and subject in all things 
to its orders, was at the time of her destruction " military 
materials" and not property for which Germany is obli- 
gated to pay under the provisions of the treaty of Berlin. 

Case No. 547, steamship Joseph Cudahy — oil tanker 

The steamship Joseph Cudahy, an oil tanker, owned by The Joseph 
tne American Italian Commercial Corporation, of New 
York, an American national, was requisitioned by the 
United States through the Shipping Board on October 
3, 1917, and on the same day delivered to the War De- 
partment and operated by the United States Army 
Transport Service under a bare-boat charter by a civilian 
crew employed and paid by and in all things subject 
to the orders of the Army authorities. She was armed 
with two 3-inch guns. Her armament was manned by 
a United States naval crew of 21 men. She had carried 



212 CLAIMS COMMISSION UNITED STATES AND GERMANY 

a cargo of gasoline and naphtha for the United States 
Army from Bayonne, N. J., calling first at La Pollice, 
France, and then to Le Verdon, and discharged her 
cargo at Furt, Gironde River. She sailed from Le Verdon 
in ballast on her return trip to New York on August 14, 
1918, in convoy with 28 other vessels. The convoy 
broke up during the night of August 15. She was tor- 
pedoed by a German submarine and sunk on the morn- 
ing of August 17. 

The fact that she was in ballast at the time of her 
destruction is immaterial. Being a tank ship operated 
by and for the exclusive use of the Army Transport 
Service of the United States, her return in ballast for 
additional supplies of gasoline and naphtha for the 
United States Army on the fighting front was an in- 
separable part of her military operations. 

For the reasons set out in connection with the destruc- 
tion of the John G. McCullough the commission holds 
that the Joseph Cudahy at the time of her destruction 
was impressed with the character of " military materials" 
and that the loss suffered by the United States resulting 
from her destruction is not one for which Germany is 
obligated to pay under the terms of the treaty of Berlin. 

Case No. 548, steamship A. A. Raven 

TheRavent ^he steamship A. A. Raven, owned by the American 

Transportation Co. (Inc.), an American national, was 
requisitioned by the United States through the Shipping 
Board, and a bare-boat requisition charter was executed 
on February 19, 1918. She was delivered to and oper- 
ated by the War Department with a civilian crew em- 
ployed and paid by and in all respects subject to the 
orders of the War Department. She was armed with 
two 3-inch guns but had no armed guard at the time of 
her loss. While en route in convoy on March 14, 1918, 
from Barry, England, to Brest, and thence to Bordeaux, 
France, she was sunk. The German Admiralty has 
no record of her having been torpedoed by a German 
submarine as claimed by the American agent. As 
pointed out by the German agent, she may possibly 
have struck a mine adrift from fields planted by the 
Netherlands Government along the Dutch coast not 
far from the point where the A. A. Raven was sunk. 
The evidence that she was torpedoed, while far from 
satisfactory, is sufficient to support the allegation. 



RULES FOR HULL LOSSES 213 

However, in view of the disposition which the commission 
will make of this case the cause of her destruction is 
immaterial. 

At the time of her destruction she had a cargo of 
food, clothing, surgical instruments, hospital supplies, 
piping, and rails and 400 tons of explosives, all belonging 
to the United States and all designed for the use of the 
American Army in France. 

For the reasons set forth in connection with the case Decislon - 
involving the loss of the John G. McCullough the com- 
mission holds that the steamship A. A. Raven was at the 
time of her destruction impressed with a military charac- 
ter and that the resultant loss to the United States is 
not one for which Germany is obligated to pay under 
the terms of the treaty of Berlin. 

From the foregoing the commission deduces the fol- 
lowing general rules with respect to the tests to be applied 
in determining when hull losses fall within the excepted 
class of " naval and military works or materials" as that 
phrase is found in paragraph 9 of Annex I to Section I 
of Part VIII of the treaty of Versailles as carried by 
reference into the treaty of Berlin: 

I. In order to bring a ship within the excepted class fo^huSTossesl 1188 
she must have been operated by the United States at 

the time of her destruction for purposes directly in 
furtherance of a military operation against Germany or 
her allies. 

II. It is immaterial whether the ship was or was not 
owned by the United States; her possession, either actual 
or constructive, and her use by the United States in direct 
furtherance of a military operation against its then enemies 
constitute the controlling test. 

III. So long as a ship is privately operated for private 
profit she can not be impressed with a military character, 
for only the government can lawfully engage in direct 
warlike activities. 

IV. The fact that a ship was either owned or requisi- 
tioned by the Shipping Board or the Fleet Corporation 
and operated by one of them, either directly or through 
an agent, does not create even a rebuttable presumption 
that she was impressed with a military character. 

V. When, however, a ship, either owned by or requi- 
sitioned by the United States during the period of 
belligerency, passed into the possession and under the 
operation of either the War Department or the Navy 



214 CLAIMS COMMISSION UNITED STATES AND GERMANY 

Department of the United States, thereby becoming a 
public ship, her master, officers, and crew all being em- 
ployed and paid by and subject to the orders of the United 
States, it is to be presumed that such possession, control, 
and operation by a military arm of a government focusing 
all of its powers and energies on actively waging war, 
were directly in furtherance of a military operation. 
Such control and operation of a ship will be treated by 
the commission as prima facie, but not conclusive, 
evidence of her military character. 

VI. Neither (a) the arming for defensive purposes of a 
merchantman, nor (b) the manning of such armament by 
a naval gun crew, nor (c) her routing by the Navy Depart- 
ment of the United States for the purpose of avoiding the 
enemy, nor (d) the following by the civilian master of 
such merchantman of instructions given by the Navy 
Department for the defense of the ship when attacked 
by or when in danger of attack by the enemy, nor (e) her 
seeking the protection of a convoy and submitting herself 
to naval instructions as to route and operation for the 
purpose of avoiding the enemy, nor all of these combined, 
will suffice to impress such merchantman with a military 
character. 

VII. The facts in each case will be carefully examined 
and weighed and the commission will determine whether 
or not the particular ship at the time of her destruction 
was operated by the United States directly in furtherance 
of a military operation against Germany or her allies. 
If she was so operated she will fall within the excepted 
class, otherwise she will not. 

The preliminary submissions of the 13 cases specifically 
dealt with in this opinion will not be held a waiver of the 
right of either the American agent or the German agent 
to file in any of them additional proofs bearing on the 
points decided. Such additional proofs if filed will be 
considered by the commission on the final submission, 
when the principles and rules herein announced will be 
applied and final decisions rendered. In the absence of 
further evidence, the interlocutory decisions herein 
rendered in each of these 13 cases will become final. 

Done at Washington, March 25, 1924. 

Edwin B. Parker, 

Umpire. 
Concurring in the conclusions : 

W. KlESSELBACH, 

German Commissioner. 



RETURN VOYAGE 215 

I concur in the conclusions generally, but not in the 
conclusions that on the facts stated with reference to the 
Joseph Cudahy she was impressed with the character of 
"military and naval works or materials" within the 
meaning of that phrase as used in the provisions of the 
treaty of Versailles under consideration. 

One of the conclusions concurred in is that the control 
and operation of a vessel by the War Department of the 
United States for Army service, as was the case with the 
Joseph Cudahy, constitutes prima facie but not conclusive 
evidence of her military character. 

Another conclusion concurred in is that in order to 
bring a vessel within the excepted class she must have 
been operated by the United States at the time of her 
destruction "for purposes directly in furtherance of a 
military operation against Germany or her allies." 

On the facts stated, the Joseph Cudahy was returning Return voyage. 
home from France to the United States in ballast at the 
time of her destruction, so that she was not being operated 
at that time "for purposes directly in furtherance of a 
military operation against Germany or her allies." 
Accordingly the presumption arising from her control 
and operation by the War Department is completely 
rebutted by her actual use and situation at the time of 
her destruction. 

Chandler P. Anderson, 

American Commissioner. 



INDEX 

Action : Pago 

In personam and by other form 1 

Joint 111 

Offensive 107 

Acts of foreign sovereign 73 

Administrative decisions, Mixed Claims Commission 173, 174 

Admiralty jurisdiction 23, 44 

Agreement: 

Managing 197 

Operating 197 

Alamance, steamship 205 

Ambassador, immunity of 67 

Armed : 

For defensive purposes 202 

Merchantmen, for defensive purposes 201 

Ship 104, 105, 106 

Vessels _._ 109, 112, 115, 117, 119 

Assistance to enemy 3 

Attack, submarine 201 

Awards, interest on 188 

Bareboat charter 196, 211, 212 

Barges as contraband 156 

Barred zones. (See "War zones.") 

Basis of damages 175 

Belonging to 207 

Bernisse, The 121 

Blockaded area 3 

Blonde, The 131 

Boats, exemption of small 164 

Bounty 108, 109, 110, 112, 113 

Captain, conduct of. (See " Suspicious conduct of captain.") 

Capture 76 

On suspicion 12$ 

Cargo: 

Damaged 8- 

Status of 1 

Character, military 210, 211, 214 

Charlotte, the 49- 

Charter 77, 81, 87, 88 

Bareboat 196, 211, 212 

Force of 79 

Requisition 196, 209 

Time 208 

Time-form 196 

Charterer, liability of 97 

Christian Boles, the 171 

33474— 25f 15 217 



218 INDEX 

Page 

Civilian losses 191 

Coal: 

Deliveries of 84 

Supplying 86 

Code, German 174 

Collision 7, 33, 45, 60, 69, 91, 101 

Cause of 21 

Liability 22 

Columbia, XL S. S 17 

Commission : 

For relief in Belgium 2, 7 

Public 31 

Common carriage 8 

Compensation 148, 149, 175, 181, 183, 186 

Conditional release 76 

Conduct of captain. (See "Suspicious conduct of captain.") 

Confiscation of vessel 76, 149 

Conner, The 14 

Construction of treaty 187 

Construing of international instrument 142 

Continuous voyage T 82 

Contraband, barges as 156 

Convoy, enemy 203 

Course, deviation from 3 

Damages 174, 181 

Basis of estimate 175, 176 

Cargo 8 

Exemplary 180, 182 

One-half 13 

Days of grace 133, 135, 138 

Reciprocity as to 141 

Decisions: 

International Law Volume of 1922 VII 

International tribunals VII 

Mixed commissions _ 1 _ VII 

National courts VII 

Official language VII 

Translations VII 

Declaration of London 82, 87 

Defense 107 

Armed for purposes of 202 

Merchantmen, arming for purposes of 201 

Deficiency act, urgent 100 

Deliveries of coal 84 

Destination : 

Enemy 166 

False! 162 

Presumption of enemy 158 

Destruction •_ 81,82,89 

Of prize 170 

Detention of vessel 149 

Deviation from course 3, 10 

Documents, special 125 



INDEX 219 

Page 

Draupner, the 80 

Dutch ships, requisitioned 189 

Elve, the_ , 121 

Emergency Fleet Corporation. (See "Shipping Board.") 
Enemy: 

Assistance to 3 

Convoy 203 

Destination 166 

Destination, presumption of 158 

Owned vessel 2 

Vessels 117 

Vessels and cargo 131, 167 

Eorus, the 169 

Esperanza, the 14, 86 

Espiegle, H. M. S_ 108 

Espionage 4 

Europ ean food relief " 7 

Evasion 3 

Examination in port 127 

Exemplary damages 180, 182 

Exemption of small boats 164 

False destination 162 

Ferry regulations 9 

Fleet Corporation. (See "Shipping Board.") 

Force of charter 79 

Foreign sovereign: 

Acts of 73 

Immunity of 23 

Liability of 65 

Property of 72 

Foscolia, the 17 

German : 

Code 174 

Prize Code . 83, 87, 158 

War methods 145 

Gouwzee, the 156 

Government: 

Liability 10 

Property 191 

Governmental : 

Function +._■. 7 

Noncommercial work 1 

Grace, days of 133, 135, 138 

Gul Djemal, the 28 

Haelen, the 1 

Hague Conventions: 

VI '. 143, 153, 154 

XI 5 

Hostilities, ignorance of 163 

Hull losses, general rules 213 

Ignorance of hostilities 163 

Immunity ; 57 

Claim of 24 



220 INDEX 

Immunity — Continued. Page 

Of ambassador 67 

Of foreign sovereign 23 

Oif local state 50 

Of public vessel employed in trade. . 30 

Of state _ „ _ 52 

Sovereign . 34 

Sovereign waived 25 

Indemnity 175 

Inj uries, pecuniary 175 

Inland rules 9 

Insurance 12, 85, 179 

Tables 180 

Instructions, routing 201 

Interest on awards 188 

International instrument, construing of 142 

Island, the . 75 

Japanese prize cases 161 

John G. McCullough, steamship 209 

Joint action 111 

Joint operations 109 

Joseph Cudahy, steamship 211 

Jurisdiction: 

Admiralty - 23,44 

Want of 13, 14 

Kiel prize court 2 

Kirkwall practice 121, 122, 124, 125 

La Bourgoyne 9 

Law merchant 34 

Liability : 

For collision 22 

For maritime torts 41 

Government 10 

Of charterer 97 

Of foreign sovereign 65 

Of state. 47 

Municipal 9 

Tort --- 45 

Lien: 

Dormant maritime 74 

Maritime 61, 63, 64, 66, 67, 68, 70, 72, 96, 97, 101 

Maritime against public vessel 39 

Unenforcible 43 

Lighters 109 

Local trade 168 

London, Declaration of 82, 87 

Losses, civilian , 191 

Lusitania, the 173 

Mahelas -- 109 

Managing agreement 197 

Maritime: 

Law 42 

Lien 61, 63, 64, 66, 67, 68, 70, 72, 96, 97, 101 

Lien against public vessel 39 



INDEX 221 

Maritime — Continued. Page 

Lien, dormant <<- 74 

Tort 42 

Tort, immunity from 48 

Tort, liability for 41 

Materials 192, 193 

Mayor Gaynor, the ferryboat 7 

Mental suffering 177 

Merak, steamship 206 

Merchantmen arming for defensive purposes 201 

Military : 

Character 210, 211, 214 

Materials 212 

Mission, philanthropic 3, 6 

Mixed Claims Commission — United States and Germany 173 

Administrative decisions 173 

Mobilization for war 199 

Moreni, the 204 

Motano, the 202 

Mudros, the 22 

Municipal liability 9 

Naval and military works or materials:. _ _' : 189, 198 

Naval operations 108 

Necessity 6 

Negligence 7, 20, 50 

New York & Cuba Mail Steamship Co 14 

Obligations, treaty , 185 

Offensive action 107 

Offensive-defensive 107 

Operating agreement 197 

Operations : 

Joint 109 

Naval 108 

Order in council, February, 1917 129 

Passengers, status of 1 

Patent rights 71 

Pecuniary injuries- 175 

Philanthropic mission 3, % 

Pinar del Rio, steamship 203 

Port: 

Examination in , 127 

Of refuge 10 

Search in 121 

Porto Alexandre, the 51 

Porto Rico v. Rosaly 23 

Private property at sea 163 

Privileged treatment of vessel , 5 

Prize : 

Cases, Japanese 161 

Code, German 83, 87, 158 

Court rules 23 

Destruction of 170 

Law. . 7 



222 INDEX 

Property: Paft 

Government 191 

Of foreign sovereign 72 

Private at sea 163 

Public 12 

Public: 

Commission 31 

Property 12 

Ship 199,210 

Ship, status 198 

Vessels 23 

Vessels forfeited 23 

Vessels, services to 53 

Vessels, treatment of 54 

Queens, the ferryboat 7 

Raven, steamship A. A 212 

Reciprocity as to days of grace 135 

Recompense 175 

Regulations: 

Ferry 9 

Municipal 9 

Release: 

Conditional ^ 76 

Of vessels 155 

Relief of Europe 12 

Reparation 175, 186, 190 

Requisition 22, 51, 78, 93, 98, 99, 150, 196, 208 

Charter 196,209 

Requisitioned Dutch ships 189 

Restoration of vessels 150 

Retaliation 136 

Return voyage 215 

Rights, patent 71 

Rochester, steamship 204 

Rockingham, steamship 200 

Rosaly, Porto Rico v 23 

Routing instructions 201 

Rules: 

International - 17 

Prize court 23 

Safe conduct 1, 5, 6 

Safe passage 5 

Conditions of 6 

Salvage 24 

Santa Maria, steamship 206 

Sao Vincente, the 23 

Search : 

At sea 123 

In port 121 

Seaworthiness 3, 10 

Service : 

To public vessel 53 

Unneutral 77, 86, 171 

Shipping Board, United States 8,32, 194, 195 



INDEX 223 

Ships: Page 

Of war 1, 109 

Public- 199,210 

Public, status of 198 

Sovereign immunity 34 

Special documents 125 

Speed : 

Excessive 20 

Moderate 18 

Undue___-. 9 

State : 

Immunity 50, 52 

Liability 47 

Owned vessel 60 

Status : 

Cargo 1 

Passengers 1 

Public ship 198 

State-charted vessels 1 

State-owned -vessels- - 1 

Steerage way 15, 21 

Submarine: 

Area 122 

Attack 201 

E. 12, H. M 113 

E. 14, H. M ___. 103 

Suffering, mental 177 

Supplying coal «. - Ji 86 

Suspicion not well founded 172 

Suspicious conduct of captain: 

Destruction of the log 4 

Erasure of course 4 

Wish to strike mine , 4 

Sylvan Arrow, the 90 

Tervaete, the 59 

Texel, steamship 207 

Time charter 208 

Time-form charter 196 

Tort: 

Immunity from maritime 48 

Liability 45 

Maritime, liability for 41 

Trade, local 168 

Treaty: 

Construction , 187 

Obligations 185 

Treaty of Versailles 134, 151, 152, 153, 185, 189, 190, 199, 208, 215 

Tyler, steamship 205 

Unenf orcible liens * 43 

United States Shipping Board. (See " Shipping Board.") 

Unneutral service , 77, 86, 171 

Urgent deficiency act _ 100 

Versailles, Treaty of. (See "Treaty of Versailles.") 



224 ISFDEX 

Vessels: Pag» 

Armed.. _ 115, 117, 119 

Charter 1 

Charter and lease 33 

Collisions. (See "Collision.") 

Confiscation 76, 14& 

Conveying necessities 5 

Detention of 149 

Employed as merchant 33 

Employed in public service 33 

Enemy 117 

Enemy and cargo 131, 167 

Enemy-owned 2 

Jurisdiction 11 

Ownership „ __. 1 

Privileged treatment 5 

Public 23 

Public business 11 

Public, maritime lien against 39 

Public, services to ; 53 

Public, treatment of * 54 

Release of 155 

Restoration of 150 

Safe conduct to __i_ 5 

Service 1 

State-employed . . 23 

State-owned « 60 

Status of State-owned and State-chartered *_« 1 

War, navigation of a . &. .- 17 

Wages •_._- i ._ __._ 85 

War: 

Methods, German w 145 

Mobilization for 199 

Vessel, navigation of . 17 

Zones 1, 3, 4 

Waubesa, the 7 

Western Maid, the 11, 13, 32 

Zuiderzee, the - 156 

Zuimo, the 161 

o 



.